Ritch v. Thornton

BEICKELL, C. J. — The errors assigned in this cause have been examined, and are not available to reverse the judgment. It is conceded by the counsel for the appellants, that the complaint contains a substantial cause of action— that it was unnecessary to aver specially that the contract declared upon was in writing. The Code declares, that “ no judgment can be arrested, or annulled, or set aside, for any matter not previously objected to, if the complaint contains a substantial cause of actipn.” — Code of 1876, § 3158. If it be admitted, that it can be fairly collected from the record that the contract, the foundation of the suit, was not in writing, and therefore was void under the statute of frauds, the invalidity of the contract was matter of defense, which was waived by the failure to plead it. — Patterson v. Ware, 10 Ala. 444. A judgment rendered upon, and conforming to a verdict, can not be reversed, Jbecause the damages exceed the amount claimed, or the amount really due. The remedy is by motion for a new trial in the court below, where the error may be cured by a release of the excess, or such other order made as the justice of the case may require. — 1 Brick. Dig. 776, § 39. If the excess of ten cents, now claimed, is not within the curative influence of the maxim, lex de minimis non curat, from its burdens the appellants ought to have obtained relief, by a motion to the primary court. The judgment is affirmed.