86 P. 2 | Or. | 1906
delivered the opinion.
The only point made on this appeal is that the complaint does not state facts sufficient to constitute a cause of action, because it does not allege either a request by the defendant to plaintiff to furnish the horses feed, etc., or a promise to pay for the same. But this is a mere defective statement of a cause of action, and was cured by the verdict. A verdict will cure an imperfect statement, or the omission of formal allegations, although it will not supply a total omission to state some fact essential to the cause of action. The rule is that “whenever the complaint contains terms sufficiently general to comprehend a matter so essential 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 was offered or allowed on the trial, and hence the pleading is not aided by the verdict”: Booth v. Moody, 30 Or. 222 (46 Pac. 884); Houghton v Beck, 9 Or. 325; Aiken v. Coolidge, 12 Or. 244 (6 Pac. 712); Gschwander v. Cort, 19 Or. 513 (26 Pac. 621). Now, the issue joined in this ease was such as necessarily to require on the trial proof that the feed and care charged for by the plaintiff had either been furnished at the request of the defendant or he had promised to pay for the same, and without such proof it is not to be presumed that the court would have permitted a verdict in favor of the plaintiff, or that the jury would have found such a verdict.
Judgment affirmed. Ae firmed.
