Campbell v. Jones
Before: Crockett, Rhodes, Sanderson, Sawyer, Sprague
Synopsis
Pleading. —Material allegations must lie distinctly stated in pleadings, and are not to be inferred from doubtful or obscure language. Speague, J.
Pleading in Actions fob the Recoveby of Specific Peesonal Peopep,ty.—A complaint, in such actions, is fatally defective, when it appears that tho defendant came rightfully to the possession of tho property, and there is no allegation of demand, and refusal to deliver the same. Spbagüe, J.
Veedict—Waiveb of Defects In.—If a verdict be so defective that it cannot serve as the basis of a judgment, the waiver of the defect, by the other party, and consent that a certain construction thereof should bo taken as the verdict, is as irregular and ineffectual as tho verdict itself. Spbagüe, J.
Yebdict. —If a verdict he wholly unsupported by the evidence, as to the quantity, quality and value of the property sued for, it should not be allowed to stand. Cbockett, J.
Judgment in Actions fob the Recoveby of Specific Peesonal Pbopeety.—In such actions, the omission to specify the property of which restitution is to he made, is erroneous. Cbockett, J.
Pleading of Demand and Refusal.—The allegation that the defendant “ has failed, refused and neglected so to return” the property sued for, is not an averment of the special and formal demand and refusal to deliver, required in actions of this kind. Sandebson, J.
Idem.—Although a demand is only inferable from other allegations in tho complaint, it should he held to be sufficient if tho case was submitted and tried upon other issues in the Court below, and the defect in the complaint he noticed for the first time in the appellate Court. Sawyeb, C. J., and Rhodes, J.
Yebdict—Waiveb of Infoemality In.—If a verdict be fatally informal, but before the jury are discharged, tlie party against whom it was given agreed to such an interpretation thereof as would sustain a judgment, such agreement should be hold to cure the defects in the verdict. Sawyer, O. J., and Rhodes, J. Judgment in Actions for the Recovery of Personae Property.—The judgment should he, if in favor of the plaintiff, “ for the possession, or the value thereof, in case a delivery cannot ho had, and damages for the detention.” A judgment for a return of property is only appropriate when in favor of defendant. Sawyer, 0. J., and Rhodes, J.
Opinion — Sprague
By Sprague, J.: This is an action for the recovery of specific personal property, with damages for its detention.
From the allegations of the complaint, it appears that defendant came rightfully to the possession of the property, and there is no allegation of a demand upon defendant by plaintiff for its delivery, or of any refusal by defendant to deliver the property after demand made; and, for want of these specific allegations, the complaint is fatally defective, as it does not state facts sufficient to entitle the plaintiff to maintain an action.
Pleadings are to be most strictly construed against the party making them. Material allegations must be distinctly stated, and are not to be inferred from doubtful and obscure language. A defect of this character, when there is no direct evidence introduced by the plaintiff, without objection by the defendant, tending to establish a specific demand prior to suit commenced, is not cured by the verdict, and is available to defendant at any time.
Moreover, the verdict returned by the jury is informal, and not sufficiently definite and certain to serve as a basis for a judgment upon the matters in controversy, and the judgment, as entered by the Court thereon after the waiver by defendant of informality of the verdict, and consenting that a certain construction thereof should be taken as the verdict, is quite as irregular, uncertain and ineffectual as the verdict itself.
[510]The judgment and order denying to defendant a new trial must, therefore, "be reversed and cause remanded, with leave to plaintiff to amend his complaint.
So ordered.
By Crockett, J.: In my opinion the judgment ought to be reversed :
jFirst—Because it is wholly unsupported by the evidence as to the quantity, -quality or value of pipe delivered to the defendant. The plaintiff is the only witness who testified on his behalf in that respect except Sehaffner; and the former does not profess to know how much the defendant got, as he was not present when it was delivered, and the latter only testified that the defendant said there was in all about one thousand nine hundred feet. If the verdict is to be construed as the defendant agreed it should be, as “ a finding for the plaintiff as to the title and right of possession of the property described in the complaint,” there is a total absence of proof as to how much of each hind of pipe was delivered; and as the several kinds were of different values, it was impossible for the jury, from any evidence in the cause, to have ascertained its value to have been $2,200.
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