This action belongs to the^c^ss embraced in the second § subdivision, according to what I think the better construction, includes all actions on contract to recover money as damages, not agreed to be paid, but imposed by law, for a breach of contract.
Actions on contract to recover money agreed to be paid, come within the first subdivision of the section. When a contract is, on one side, to do any.specific act, other than the payment of money, and, on the other, to pay money, an action for a breach of the former part, to recover damages, belongs to the second subdivision; but an action for a breach of the latter part belongs to the first subdivision. Implied contracts, equally with expressed ones, to pay money, are within the first subdivision. This distinction between actions on contract for the breach of a stipulation to do a specific act, and those for the non-payment of money agreed to be paid, although not plainly expressed by the letter of the Code, is, I think, in accordance with its spirit. In the former case, proof should be made of the actual damages before judgment, and I cannot think it was intended by the legislature to dispense with it!
This distinction furnishes a clear rule of easy application in practice.
In regard to the other ground of motion, that the plaintiff in the complaint demands judgment for a greater sum than that specified in the summons, it is clear that if the defendant should not answer, the plaintiff could not take judgment for more than is named in the summons. {Code, § 275.) Whether it is a defect for which the complaint should be set aside, it is not necessary now to determine.
The motion must be granted, with $10 costs, unless the plaintiff, which he is at liberty to do on payment of said costs, amend his summons in the notice in the particulars referred to.