By striking from the complaint the allegation that the defendant converted to his own use the goods, notes and money of the plaintiffs therein described, which he had neglected and refused to account for and pay to the plaintiffs, when by them requested so to do, the entire cause of action set forth might be regarded as arising on contract, and the complaint would conform to the summons, which contains the appropriate notice prescribed by sub. 1 of § 129 of the Code. The form and language of the complaint would then be substantially like declarations in assumpsit under our former system of practice in actions against an agent employed to sell goods, and for not duly accounting for the goods, or for the moneys received by him. (Chit. Pl. 7th Am. ed. from 6th London ed., vol. 2, pp. 341 and 344; also see id. p. 335, id. p. 263; Yates PI. 236.)
While the charge of a conversion of the goods, notes and money by the defendant remains in the complaint, it is doubtful whether the gravamen of the 'action is not the conversion; and *211whether the action is not in substance ex delicto. If it can be considered as ex delicto, and arising from the conversion, then the contract stated in the complaint must be regarded as inducement only, to the real cause or gist of the action.
This is the construction put upon the complaint by the defendant’s counsel; and there are decisions which countenance such a construction. “ If the contract be laid as inducement only, it seems thpt case for an act, in its nature a tort or injury, afterwards committed in breach of the contract, may often be adopted. On this ground, case for not accounting for, and for converting to the. defendants use, bills delivered to him to be discounted, or the proceeds of such bills, is probably sustainable.” (1 Chit. Pl. 154, ed. before cited; 6 East. 333.)
“ And in Mast agt. Goodson, (3 Wils. 348,) it was held that a count in case, setting out an agreement by which the plaintiff was to build a yard in defendant’s close, and lay out not less than ¿620, and was to enjoy it for life j and averring that defendant built the yard, and enjoyed it for some years as an easement, but defendant afterwards wrongfully obstructed him in the enjoyment of it, was good.” “In that case,” says Chitty, (1 Chit. Pl. 154,) “ the action was founded on a contract ; but the obstruction to the plaintiff’s right for which the action was brought, was éíc delicto, although the right also arose out of the contract.”
As before stated, it is doubtful whether the breach of the contract in this case is set out as the gist of the action, or whether the conversion is not the' real cause for which the action is brought. There can be no doubt but the plaintiffs had their election, éither to base their action on the contract, alleging the neglect or refusal of the defendant to account for the goods, money and notes, and pay the same to the plaintiffs when requested so to do; or to allege the defendant’s breach of duty arising out of his employment for hire, and the conversion of the goods, money and notes by him, belonging to the plaintiffs, as the gravamen of their complaint. (1 Chit. Pl. 163, ed. before cited.)
The breach of duty and conversion in the latter case would *212be the gist of the action, and the manner the goods, money and note's came into the defendant’s hands would be quite immaterial, the same as it formerly was in the old action called tro° ver. (Gra. Pr. 2d ed. 206.)
The difficulty in this case arises by the blending, or the connecting together in the complaint, of allegations proper and pertinent to an action solely on the contract, and also to an action for the tort or conversion of the property. This, perhaps, is allowable under the Code, which prescribes that the complaint shall contain “a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition.” (§ 142 of the Code, sub. 2.)
The allegation in the complaint, that the defendant converted to his own use the goods, notes and money therein mentioned, must be deemed a part of the transaction constituting the real cause of the complaint against the defendant. It is perfectly consistent with the other allegations in the complaint; and there are no perceivable reasons why it should not remain there, if the complaint is tested solely by the Code itself. (§ 167 of the Code, sub. 1.)
The charge of a conversion in the complaint is not only proper, but absolutely necessary to make the action ex delicto, instead of ex contractu. It has made the defendant’s counsel believe the complaint charged a tort upon the defendant, and not a simple breach of the contract. The allegation -was wholly unnecessary, if a breach of the contract only was charged.
For what purpose, then, was the charge of converting the goods, notes and money, inserted in the complaint1?
It is fair to presume and hold, it was inserted therein to characterize the action as ex delicto, and to distinguish it from one arising on contract. The plaintiffs should be held to this construction of their complaint by the old and familiar rule, that a pleading should be construed most strongly against the party whose pleading is brought in question. This construction does no violence to § 140 or § 159 of the Code; for, by it the ordinary and popular sense of the language used in the complaint is adopted; and it is presumed men of ordinary understandings, *213who are not lawyers, would put a similar construction upon the language of this complaint.
Whether the action is founded solely on the contract, or the gist of it is for the conversion; or whether the allegation of a conversion is in the complaint or not, is wholly immaterial in determining the question, whether the defendant can be arrested before judgment is rendered in the action, or afterwards on an execution against his person. An order of arrest may be granted in an action for money received, or property embezzled, or fraudulently misapplied by any agent or other person in a fiduciary capacity. (Sub. 2, § 179 of the Code.) An agent employed to collect moneys for his principal is liable to arrest where he appropriates such moneys to his own use. (Stoll agt. King, 8 How. Pr. R. 298; Burhans agt. Casey, 4 Sand. 707.)
It is pretty well settled, that it is not necessary the facts which render a defendant liable to arrest should be stated in the complaint. (Cheney agt. Garbutt, 5 How. Pr. R. 467; Masten agt. Scovill, 6 id. 515; Corwin agt. Freeland, 2 Selden, 560.) The principle involved in this point was determined the same way prior to the Code. (Stage agt. Stevens, 1 Benio, 267.)
The motion to dismiss the proceedings in the cause cannot be granted, because it is too broad and comprehensive. The summons cannot be set aside. It is in proper form, and it clearly shows the action is one arising on contract, which fact was not only properly but necessarily stated in the summons. (§ 129 of the Code.) The motion should have been to set aside the complaint, on the ground that the complaint varies from the cause of action indicated by the summons.
Prior to the Code, the true cause of action had to be stated in the ac-etiam part of the capias by which the action was commenced. And in declaring, if the plaintiff did not pursue the cause of action as set forth in the ac-etiam, his declaration and subsequent proceedings only, and not the capias, were set aside for irregularity. (Gra. Pr. 2d ed. 119; Rogers agt. Rogers, 4 J. R. 485; Roosevelt agt. Smith and Vansantvoord, 16 J. R. 44; Durfee agt. Heimstreet, 1 Wend. 305.)
In analogy to the practice prior to the Code, and by the Code *214itself, the summons must show whether or not the action arises on contract. The. complaint, whether served with the summons-or subsequently, must conform to the nature of the action appearing in the summons. It will be presumed, in all cases, that the complaint is drawn subsequent to the making or issuing of the summons. The plaintiff should know, before his summons is made out, whether his action arises on contract for the recovery of money only. If he mistakes the nature of his action, he can ask the court for leave to amend his summons. He should not be allowed to make his complaint for a cause of action-not indicated by his summons, and then be permitted to say to the defendant, when brought up by a motion for the irregularity, “my complaint is right and' my summons is wrong.” To hold that the complaint should control the summons, instead of the latter controlling the former, as to the nature of the action brought, would be somewhat like making a judgment conform to the execution issued on it. It would be currus bóvem trahit.
As the irregularity complained of is pointed out in the defendant’s notice of the motion, relief may be granted under that part of the notice which states the defendant will ask the court for such other or further order as to the court shall seem proper; and the complaint is set aside, unless the plaintiffs shall, within twmnty days, amend the summons so it will conform to the complaint, or amend the complaint so it will agree with the cause of action indicated by the summons.
Both parties having erred in their proceedings, no costs of motion are given to either party.