58 P. 888 | Or. | 1899
delivered the opinion.
This is an action to recover compensation for services alleged to have been performed by plaintiff as canvassing agent for defendants. It is stated, in substance, in the complaint, that at all the times therein mentioned the defendants, J. R. Greenfield and L. E. Woodworth, were partners, and engaged in business under the name of the Pacific Coast Home Supply Association ; that about November 28, 1894, defendants entered into a contract with plaintiff, whereby he was appointed their agent, in pursuance of which he solicited subscriptions for membership in said association, for which they agreed to pay him forty per cent, of the amount secured on account thereof; and it was stipulated that if the commissions
It is insisted by plaintiff’s counsel that, notwithstanding the complaint might have been vulnerable to a-demurrer, if one had been interposed, the defect was cured by the verdict. The rule is well settled in this state that a general verdict will cure a defective statement in a pleading, but will not aid one from which a material averment is omitted : Weiner v. Lee Shing, 12 Or. 276 (7 Pac. 111); Bingham v. Kern, 18 Or. 199 (23 Pac. 182). “The extent and principle of the rule of aider by verdict, ’ ’ says Mr. Justice Bean in Booth v. Moody, 30 Or. 222 (46 Pac. 884), “is that whenever the complaint contains terms sufficiently general to comprehend a matter so éssential and necessary to be proved that, had it not been given in evidence, the jury could not have found the verdict, the want of a statement of such matter in express terms will be cured by the verdict, because evidence of the fact would be the same whether the allegation of the complaint is complete or imperfect. But, if a material allegation going to the gist of the action is wholly omitted, it cannot be presumed that any evidence in reference to it