Lusk Lumber Co. v. Independent Producers Consolidated
| Citation | 36 Wyo. 34,252 P. 1029 |
| Decision Date | 08 February 1927 |
| Docket Number | 1235 |
| Parties | LUSK LUMBER CO. v. INDEPENDENT PRODUCERS CONSOLIDATED et al. [*] |
| Court | United States State Supreme Court of Wyoming |
APPEAL from District Court, Natrona County; C. O. BROWN, Judge.
On petition for rehearing. See 249 P. 790.
Rehearing Denied.
James P. Kem and Kinkead & Ellery, for the petition.
A. C Allen and O. N. Gibson, for appellants.
M. C Burk, for receiver of First State Bank of Riverton.
The respondent applies for a rehearing. It is again argued that the petition sufficiently alleges performance of the contract. Our attention is called to some allegations that were not mentioned in our former opinion. In alleging in the petition that Mr. Myrin's approval of the work was wrongfully and unreasonably withheld, it was stated that his failure to approve the work was not due to any default, neglect or omission on the part of the plaintiff, or to any failure or refusal of plaintiff to comply with the provisions of the contract, or any failure on the part of the plaintiff to furnish proper appliances, labor or materials in the erection of the work. In our former opinion, 249 P. 790, we quoted, at page 791, the allegations which, as stated in respondent's brief, had reference to performance of the contract. While we had not overlooked the statements now called to our attention, we thought in our discussion we might safely base our opinion as to the sufficiency of the petition on those allegations which counsel for respondent in his brief relied upon. In the circumstances we do not feel that, on an application for rehearing, we are called upon to discuss the averments in regard to Mr. Myrin's failure to approve the work. We merely state our conclusion that those averments do not aid the petition on the matter in question, and continue of the opinion that the demurrer should have been sustained for the reasons heretofore given.
There is another matter that gives us more concern. Counsel for respondent seem to think that we have based our decision on very technical grounds, and that we have overlooked a principle heretofore approved by this court. Lest others may take the same view we make a brief explanation.
The principle which it is claimed we overlooked, and failed to apply, is that stated in Grover Irr. Co. v. Lovella Ditch Co., 21 Wyo. 204, 229, 131 P. 43, 48, (L. R. A. 1916 C. 1275, Ann. Cas. 1915 D, 1207) that certain defects in a pleading may be cured by verdict. In that case, after stating that a defect in a pleading, even as to matter of substance, may be aided or cured by the pleading of the adverse party, it was said, among other things, that:
"And the defect might be aided or cured by the verdict, that is to say, by intendment after verdict, the doctrine in that respect being that where a defect in a pleading would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the...
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