Madden v. Welch

• Decision Date: 17 July 1906
• Citation: 86 P. 2,48 Or. 199
• Parties: MADDEN v. WELCH. [*]
• Court: Oregon Supreme Court

86 P. 2

48 Or. 199

MADDEN v. WELCH. ^[*]

Supreme Court of Oregon

July 17, 1906

Appeal from Circuit Court, Malheur County; George E. Davis, Judge.

Action by J.E. Madden against Frank Welch. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was originally commenced in a justice's court. The complaint, omitting the formal parts, alleges that "between the 1st day of January, 1900, and the 25th day of February, 1905, plaintiff furnished defendant horse feed consisting of hay and grain, and care and attention for defendant's horses, consisting of feeding and stabling said defendant's horses, to the reasonable amount of $52.68; that plaintiff has often demanded payment of said sum from defendant, but defendant has ever failed and refused to pay the same or any part thereof; that said sum of $52.68 is now due and owing from defendant to plaintiff." Judgment is demanded for such amount. A demurrer to the complaint because it does not state facts sufficient to constitute a cause of action, was overruled by the justice, and defendant answered over, denying the material allegations thereof, but made no further appearance in the justice court. Judgment was there rendered in favor of plaintiff for the amount prayed for in the complaint. An appeal was taken to the circuit court, where the demurrer was again overruled, and trial had before a jury, resulting in a verdict in favor of the plaintiff. From a judgment entered on such verdict, the defendant appeals.

W.H Brooke, for appellant.

C. McGonagill, for respondent.

BEAN C.J. (after stating the facts).

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,...