Page:North Dakota Reports (vol. 3).pdf/412

been omitted from the answer. They are mere surplusage. The substance of them is that, while Braithwaite was performing his part of the contract, the interveners seized the boat wrongfully. It was just as much a conversion for them to seize under these circumstances as it would have been had there been no agreement between the parties. The act was as much a tort as though a stranger to the contract had seized the boat. There being no averment of an election to waive the tort, and there being nothing in the pleading to warrant a recovery in assumpsit,—the allegations being those which are peculiarly adopted to the averment of a cause of action for conversion,—we cannot treat the counterclaim as setting up a cause of action arising on contract. That the pleading should clearly show that the party elected to stand upon contract, and not upon the tort, is apparent when we consider the consequences which flow from a judgment for a wrong. Execution may issue against the person. Sections 4945, 5115, Comp. Laws. If allowed, through error of the court, to use the tort as a counterclaim, on the ground that no waiver was necessary, could he not, after a judgment in his favor, proceed against the person of the debtor under the judgment? Nor would it do to answer that, by using the tort as a counterclaim, he had manifested his election to stand upon contract, for there are many cases in which a tort may be used as a counterclaim under the statute. In such cases the interposition of a cause of action for a wrong as a counterclaim would not indicate a purpose to waive the tort. The right to a body execution would therefore involve an inquiry whether the cause of action for the wrong could have been set up as a wrong against the plaintiff's cause of action. This right would never depend upon the construction of the pleading alone when judgment had been recovered by a defendant upon a counterclaim, while it would depend entirely upon such construction whenever judgment should be recovered by a plaintiff in an action founded on a similar cause of action. In the latter case the court would look only to the complaint to see whether the tort had been waived.