Nicolai v. Krimbel

43 P. 865 | Or. | 1896

Opinion by

Mr. Chief Justice Bean.

That the complaint is defective, and would have been subject to a demurrer, may be conceded, but we think it must be held sufficient after verdict. The general rule in such case is “that wherever facts are not expressly stated which are so essential to a recovery that, without proof of them on the trial, a verdict could not have been rendered under the direction of the court, there the want of the express statement is cured by the verdict, provided the complaint contains terms sufficiently general to comprehend the facts in fair , and reasonable intendment”: Field, J., in Garner v. Marshall, 9 Cal. 269. The complaint in this case alleges the sale and delivery of the goods, wares, and merchandise out of which the indebtedness arose by the plaintiff to the defendant at his special instance and request; and the failure to allege the date of such sale, or the reasonable value or agreed price of such goods, or the time or terms of payment, are mere defects of statement, and are, we think, cured by verdict: Davidson v. Oregon and California Railroad Company, 11 Or. 136 (1 Pac. 705); Aiken v. Coolidge, 12 Or. 244 (6 Pac. 712). Courts are required to disregard defects in pleadings which do not affect the substantial rights of the adverse party: Hill’s Code, § 106. In the case before us we cannot say from an inspection of the record that any substantial right of defendant was or could have been affected by tbe defects in the complaint. He was fully advised before answering, by the itemized statement furnished at his request, of the character and price of the goods for which the action was brought, and the date of the alleged sale. By his answer he admits their delivery and receipt, but avers that they were a part of and included in the larger order. That was the only issue on the trial; and, it having been submitted without objection to the jury, it seems to us the objection that the complaint is defective came too late after verdict. The judgment of the court below must therefore be reversed, and the cause remanded with directions to enter a judgment on the verdict. Reversed.