
    Matilda C. Gray, administratrix, &c. of Franklin C. Gray, , deceased, plaintiff and appellant, vs. Joseph C. Palmer, defendant and respondent.
    1. A complaint alleged that the defendant obtained from the plaintiff her indorsement upon a treasury draft, by certain false and fraudulent statements, to wit: that he would not take the proceeds of the draft to Qalifornia, but that after paying certain claims, he would immediately return the remainder of the pro? ceeds to the plaintiff, and would advise her how to invest the same, &c. jHeld that such statements being merely promises for future conduct, and not representations of existing facts, were not of such a character as to make the defend- ' ant responsible, in an action for fraud in procuring the plaintiff’s indorsement upon the draft.
    2. To be actionable, representations mpst be of some fact alleged to exist at the time, and be made for the purpose of inducing the other party to do or part with something.
    8, In an action of that nature, the plaintiff is confined to proof of the facts alleged in the complaint.
    4. Whatever objections to a complaint a defendant, by answering, waives, he does nqt waive the objection that it does not state facts sufficient to constitute a cause of action.
    6. Where a drift, together with the proceeds thereof, comes lawfully into the possession of another, this bars a recovery, for either, in an action for fraud in obtaining the draft, or tort for the conversion of the proceeds.
    6. Where the plaintiff having an election to charge one of two parties with a debt, in the alternative, charges one of them by eommmencing an action and recovering a judgment against him, the other is discharged. Having made his election, the plaintiff must abide by it.
    (Before Robertson, Ch. J., Monell and Garvin, JJ.)
    Heard October 12, 1864;
    decided December 16, 1864.
    This action was brought to recover damages for the conversion by the defendant, of a draft of the treasurer of the United States, for §5850. The plaintiff alleged in her complaint that the draft was part of the intestate’s estate, and by special authority was made payable to the order of herself and John Cook, Jr. her then co-administrator. She then alleged that in August, 1855, the defendant, for the purpose of defrauding her, requested her to entrust the draft to him for collection, he promising to pay over to her the amount, after deducting certain claims of other persons for services in procuring the draft from the United States. That relying upon such promise she indorsed the. draft, and delivered it to- the defendant, who collected the amount, and converted the same to his own use. There are other allegations of a fraudulent design on the part of the defendant to obtain the draft, and of false and •fraudulent representations, which, relying upon their truth, induced the plaintiff to part with the draft.
    The answer, after denying that the draft belonged to the estate of the decedent, or that it came into the possession of the plaintiff, as a part of the estate, avers that the decedent was formerly a resident of the state of California, where he acquired an interest, with others, in a claim against the United States ; that the claim was sent to the city of Washington for payment, and while the settlement thereof was pending, the decedent came to the Atlantic states, where he soon afterward died. That the decedent left in California a considerable real and personal estate, and that the defendant and one Cornelius J. Eaton were duly appointed administrators by the Probate Court of said state of California. The defendant claims to hold the proceeds of said draft as such administrator averring that it constituted a part of the estate of said decedent, upon which he was authorized to administer. The defendant denies the allegation of fraudulent design on his part, and avers that the indorsement of the draft by the plaintiff was for the convenience of obtaining the money thereon. The defendant further alleges, that for the purpose of collecting the draft, he delivered it to John Cook, Jr. for collection, and that said Cook collected the same. For a further defense the defendant alleges that the decedent, in his lifetime, and at the time of his death, was a copartner of said Cornelius J. Eaton and one 'William H. Gray, and that one half of said claim against the United States belonged to said firm, and that said draft was part of the assets thereof; that actions were commenced against the administrator as the- surviving member of said firm, in one of the courts of California, which by its judgment after declaring the rights and interests of the partners, adjudged that the defendant should pay to the said surviving parties, their proportion •of the assets of said firm, in the hands of the defendant as such administrator, and that the defendant has complied with such judgment; and for a further defense the defendant alleges that as administrator, appointed in the state of California, he has accounted, (at which accountings the plaintiff was represented,) wherein and whereby the defendant was charged with the amount of said draft. And for a further defense the defendant alleges that on the same day he received said draft from the plaintiff, he delivered it to John Cook, Jr. who collected the samé, and placed the proceeds to the credit of Palmer, Cook & Co., of which firm said Cook was a member, and that thereafter the plaintiff, as administrator, prosecuted said Cook, to recover the amount collected by him upon said draft, and obtained judgment therein for the amount so collected.
    The action was tried before a justice of this court and a jury. When the plaintiff rested, the defendant moved for a dismissal' of the complaint on the grounds :
    1. That the action could not be sustained upon the allegations in the complaint and the evidence.
    2. That the plaintiff is estopped by the record of the judgment against Cook.
    The motion was granted, and the plaintiff excepted.
    
      Judgment of dismissal having heen entered, the plaintiff appealed.
    
      Philip G. Galpin, for the plaintiff and appellant.
    
      A. J. Vanderpoel, for the defendant and respondent.
   By the Court,

Garvin, J.

It is alleged and set forth in the complaint, that the defendant, by means of certain false and fraudulent representations, with intent to cheat and defraud the plaintiff, obtained her indorsement upon a certain draft drawn by the treasurer of the United States, for the sum of $5850, belonging to the estate of F. C. Gray, deceased, and payable to the joint order of the plaintiff, as administratrix, and John Cook, Jr. administrator, as representatives of the deceased. The false representations stated in the complaint are : “ That he had no intention of taking, and would not take the proceeds of said draft to California, but assured the plaintiff upon his' word of honor, that after paying off the claims or liens upon said fund or claim or draft, at Washington, he would immediately return the remainder of the proceeds of said draft to the plaintiff, and would advise the plaintiff how to invest the same; that he wanted the plaintiff to indorse said draft to enable him, the defendant, to pay off said claim or liens upon said draft or fund at Washington, and if the plaintiff undertook to settle with the claimants, they would cheat her badly.” That relying solely upon these false and fraudulent statements, the plaintiff indorsed the draft, and entrusted the same to the defendant. The plaintiff also alleges that by means of these representations she Was injured, and suffered damage. The defendant, in his answer, denied all the allegations óf the complaint, in regard! to these representations ; and set forth new matter constituting a defense. The action was brought to trial before a justice of this court and a jury. Upon the plaintiff’s case, as made by the evidence, the, complaint was dismissed upon two grounds. The first ground was that the action could not be sustained upon the allegations in the complaint and the evidence. This action being for fraud and deceit alleged to .have been practiced upon the plaintiff by the defendant, through certain false and fraudulent representations, the plaintiff was bound by all the rules of law governing such cases, to prove his case, as stated in the complaint, provided it embraced a cause of action. And, whether it did or not, she could not, upon the trial, give evidence of false and fraudulent representations that she had not complained of. If no cause of action was stated in the complaint, the same rule must prevail; so that, in either case, the plaintiff must be confined, in actions of this description, to proof of the facts alleged. By answering, the defendant waives many objections to the complaint, but he does not waive 'the objection that the complaint does not state facts sufficient to constitute a cause of action. Thus the cause was presented to the court at the trial. It was held by the learned judge, after hearing the evidence for the plaintiff, that the action could not be sustained upon the allegations in the complaint and the evidence. The manifest reason for this ruling was that neither the plaintiff’s pleadings or proofs made out a cause of action. It was not the fault of the pleader; doubtless, all the representations which had been made by the defendant were set forth in the complaint, and proved on the trial; but they are not sufficient upon which to base an action for fraud in procuring the indorsement of the plaintiff’s name upon the draft. To be actionable, the representation must be of some fact alleged to exist at the time, and made for the purpose of inducement. 'The representation by the defendant that he would not take the proceeds of the draft to California, and would immediately return the' remainder of the proceeds to the plaintiff, and would advise the plaintiff how to invest the same. Even if he intended, at the • time it was made, to repudiate, his promise was not of such a character as to make him responsible in this action. The other representations are of the same description. They are all promises for future conduct ; and not representations of existing facts. This view of the complaint and evidence sustains and fully accords with the first ground upon which the complaint was dismissed, and is also decisive of the main objections taken to, and rejection of evidence offered by the plaintiff. Most of the evidence offered by the plaintiff, and rejected, would have been entirely immaterial, by reason of the absence of any cause of action in the complaint. The other ground upon which the complaint was dismissed is equally conclusive against the plaintiff. Having elected by her action, to pursue Cook to a judgment for the same identical draft, and the proceeds thereof^ she cannot now look to Palmer. The plaintiff has made her election, and by it she must abide. It may not be improper to further remark that the draft came lawfully into the possession of the defendant, together with the proceeds thereof, which bars a recovery for either in an action for fraud in obtaining the draft, or tort for the conversion of the proceeds.. The complaint was properly'dismissed; and the judgment should be affirmed, with costs.  