Weiner v. Lee Shing

• Decision Date: 19 May 1885
• Citation: 7 P. 111,12 Or. 276
• Parties: WEINER v. LEE SHING and others.
• Court: Oregon Supreme Court

7 P. 111

12 Or. 276

WEINER v. LEE SHING and others.

Supreme Court of Oregon

May 19, 1885

Appeal from Multnomah county.

W.H Adams, for appellants.

W. Scott Bebee, for respondent.

THAYER J.

This appeal is from a judgment of the circuit court for the county of Multnomah, rendered in an action commenced in that court by the respondent against the appellants to recover money. The action was tried by a jury, and resulted in a verdict for the respondent for the sum of $1,000, the amount claimed to be due. Among the questions raised upon the appeal is that the complaint does not state facts sufficient to constitute a cause of action. The following is the substance of the complaint "That Lee Shing and Lee Shing Tin are, and during all the times herein mentioned were, partners, doing business at Portland, Oregon, under the style and firm name of 'Quon Wo On,' and that during the year 1883 said above-named defendants and Ah Foo employed Gaston & Beebe to perform services, for which they promised and agreed to pay said Gaston & Beebe the sum of $1,000 on or before May 1, 1884 that on May 16, 1884, said Gaston & Beebe, for a valuable consideration, assigned said claim to plaintiff, who now owns the same, and upon which there is now due and owing the sum of $1,000. Plaintiff therefore asks judgment against defendants for $1,000, and costs and disbursements."

The respondent's counsel claims that if the complaint would have been held insufficient upon demurrer, by reason of any defect apparent upon its face, such defect has been cured by verdict. The rule is no doubt correct, that where the statement of the plaintiff's cause of action, and that only, is defective or inaccurate, the defect is cured by a general verdict in his favor. But where no cause of action is stated, the omission is not cured by verdict. Gould, Pl. 453, § 13. The reason of the rule as stated in the section is there explained by the following quotation from a decision made by Lord MANSFIELD:

"To entitle him [the plaintiff] to recover, all circumstances necessary in form or substance to complete the title so imperfectly stated, must be proved at the trial; and it is, therefore, a fair presumption that they were proved."

It is not always an easy matter to determine whether such defect is in the statement of the title or cause of action, or a defect in the title or cause of action. The verdict does not supply any fact omitted from the complaint, but it establishes every reasonable inference that can be drawn therefrom. If the complaint is defective in not containing some material allegation, the defect will not be cured by verdict. In this case, the gist of the action was a promise to pay the thousand dollars, but that promise, standing alone, was nudum pactum. No right of action in such case arises in favor of the promisee in consequence of its breach. The facts showing that the promise was binding, had to be alleged. The plaintiff, in such a case, must show by his complaint, not only that the defendant made a promise that he had broken but also that the promise was made upon sufficient consideration; and, unless the allegation in this complaint that the defendant employed Gaston & Beebe to perform services, directly or by necessary implication avers a sufficient consideration for the promise to pay the $1,000, the cause...