Saulsbury v. Alexander

50 Mo. 142 | Mo. | 1872

Bliss, Judge,

delivered the opinion of the court.

The petition, after the title and venue, commences as follows: “Plaintiff states that defendant owes him $317 for work done and-cash lent, the particulars of which appear from the following accountthen follows the account, and the pleading concludes with a statement of the balance due, and asks judgment. There was no demurrer or motion, but defendant answered that the work was done by the plaintiff for him as a builder, but in an unskillful and unworkmanlike manner, and that he had already been paid more than it was worth. The case was tried by a jury, who gave a verdict for $200, and judgment was arrested on defendant’s motion because the petition did not show a cause of action. In this I think the court committed error. The petition is informal and defective, and there are some cases that seem to warrant the view taken by the court, but the tendency of our more recent decisions has been to require all objections of form to be taken before the parties proceed to trial. It is wrong to give them any countenance after the expense of a trial upon the merits.

The issue upon which the trial was had was really tendered by the defendant. He admitted that the plaintiff worked for him, though the fact was but defectively alleged, and charged unskillfulness in its performance. Upon a denial of this charge the jury rendered their verdict. Now it is altogether unconscionable to permit him to arrest the judgment because the charge, which he admitted in full, was defectively laid.

When we say that a judgment should be arrested if the petition fails to show a cause of action, we speak of substantial and not of foimal omissions. The latter are supplied by intendment, and will be presumed after verdict to have been proved. But when the petition shows. that the plaintiff has no cause of action, then a verdict should be treated as a nullity, and it would be error to render judgment upon it. The judgment is the sentence of the law upon the facts proved or admitted, and when the pleadings show that a judgment should not be rendered upon the facts as set out, it should be arrested. But if the defeats are merely of omission, and if, when supplied, a complete case would be made, the omission being of facts which the jury must have found, then the judgment is a legitimate sentence of the law.

In this pleading the account is made a part of the petition, being embodied in it instead of being filed with it; and even if the answer had been a simple denial, the defendant' could not have been misled. The admissions, however, of defendant upon the record, that the work was done for him, should estop him from asking for an arrest because of the omission to charge that fact in the petition.

The judgment in arrest is reversed and the cause remanded.