Page:North Dakota Reports (vol. 3).pdf/413

To allow the defendant to. insist upon a constructive waiver would violate the fundamental law of pleading. The answer must set up the facts constituting the counterclaim. But facts which show a cause of action for a wrong do not make out a case in assumpsit, and, unless the case is in assumpsit, there is no legal counterclaim. To establish a cause of action in assumpsit, the waiver must be averred either expressly or by the manner of stating the cause of action, for without the waiver no cause of action in assumpsit arises. It is not the wrong which gives the injured party the right to sue on contract; it is the wrong, coupled with the waiver of the tort. The waiver is an indispensable element in the cause of action. That the counterclaim was for conversion does not admit of doubt. See Smith v. Frost,70 N.Y. 71; Smith v. Hall, 67 N. Y. 48; Anderson v. Case, 28 Wis. 505. The case of Austin v. Rawdon, 44 N. Y. 63, has been cited to sustain the defendant's contention that he has set up a cause of action arising on contract. Other cases might be added to this to support the doctrine which it enunciates. We cite a few: Conaughty v. Nichols, 42 N. Y. 83; Tugman v. Steamship Co., 76 N. ¥. 211; Neftel v. Lightstone, 77 N. Y. 99; Goodwin v. Griffis, 88 N. Y. 629; Becker v. Northway, 44 Minn. 61, 46 N. W. Rep. 210. But these cases decide nothing contrary to the conclusion we have reached. They merely hold that, where the pleading contains a good cause of action for breach of contract, the addition of works or of allegations which are appropriate to a cause of action for a wrong does not change the action from tort to contract. They were cases where the pleader had a cause of action for breach of contract without any waiver of tort; but the same act which gave him such cause of action constituted also an actionable wrong. It was therefore necessary for him to elect which remedy he should adopt, but it was not necessary for him to waive a tort before he could sue on contract. He was held in these cases to have made his election not to proceed for the tort, and the mere presence in the pleading of words germane to an action for a wrong was properly held not to overthrow the main purpose of the pleader to sue on contract. In case of doubt