Bingham v. National Brick & Clay Co.

Mr. Justice Eakin delivered the opinion of the court. There is no bill of exceptions nor transcript of the evidence in the record, but by stipulation the findings of the court are made part of the record on appeal. The only error relied on here is that the action was not [116] commenced within the time limited in the bond; defendant contending that this defect is disclosed by the pleadings, and is fatal to the judgment. But we think the contention is without merit. Counsel seem to have misconceived the effect of the reply, contending that it admits that there was a breach of the contract by the seller in February, which would be more than six months prior to the time the action was commenced, but that is not the effect of the reply. The complaint, in paragraph 8 of the first cause of action, alleges that after the execution of the contract the plaintiff demanded the bricks of the seller, but that it failed to deliver the same, or any part thereof, except 12,655 bricks. The answer denies this paragraph, and alleges the delivery of 24,205 bricks, without stating the date thereof, and in the third paragraph of the new matter alleges : “That the defendant the National Brick & Clay Company failed, neglected and refused to manufacture the brick mentioned in said contract, * * and failed and neglected and refused to deliver the brick, as requested by the plaintiff in this action, during the months of February and March, 1911.” The National Brick & Clay Company could be put in default only by demand made by plaintiff for the bricks after a reasonable time for the manufacture thereof had elapsed. This affirmative allegation of the answer does not state that any request by plaintiff was made for bricks, except by inference, nor when, if at all,'a request therefor was made, by which the time of the default might be fixed. It amounts only to a recital that there was a failure by the seller to manufacture and deliver any bricks in February or March, without an affirmative allegation of the facts that constitute the default, and it is not sufficiently specific to show a breach in February. [117] The reply contains no allegation of new matter, and it denies the first part of subdivision 3 of the new matter of the answer on information and belief. It admits a part thereof in the exact language of the answer, namely: “Admit that said defendant the National Brick & Clay Company failed, neglected and refused to deliver the brick as requested by the plaintiff in this action during the months of February and March, as alleged in paragraph 3 of the answer”— denying the remainder thereof. This is not even in effect an affirmative allegation, nor a new assignment of the cause of action set out in the complaint, or any part thereof, and it does not admit nor confess that the first breach of the contract occurred in February, only to the extent and in the form that it is alleged in subdivision 3 of the answer, which does not state affirmatively the fact of a breach in February. Neither the answer nor reply state when a request for bricks was first made. In 31 Cyc. 49, it is said: “It is not sufficient that a fact may be inferable from facts, pleaded, where it is not necessarily implied.” The part of the reply referred to cannot be taken as - an attempt to vary the facts set up in the complaint, nor as an admission or statement that a demand for bricks was made and refused in February. It is said in Houghton & Palmer v. Beck, 9 Or. 325, that there is no doubt that formal defects, such as imperfect statements or omissions of certain formal allegations, are cured by verdict. And in 1 Bates, Pleading and Practice, page 270, it is said: “Facts must be stated issuably, and not by way of rehearsal, argument, inference, or reasoning.” In Walker v. Harold, 44 Or. 205 (74 Pac. 705), it is said that, if from the facts stated the defense or issue relied on may be reasonably implied, and is acted on by the parties and the trial court, every intendment in its favor will be invoked, and [118] the evidence introduced will he examined to determine whether or not it sustains the theory adopted hy the parties and pursued by the trial court. The evidence is not before us, but from the findings of fact it appears that the question of the time of the default was tried out, and the court finds that the refusal of the National Brick & Clay Company to deliver bricks was after the 24th day of March. ' The date of defendant’s default not being mentioned in any pleading, and in no manner raised until the trial, it was considered at the’trial by the parties, as well as by the court, that the question was not determined by the pleadings, and the court made findings of fact thereon. Thus by the trial it is made to appear that the action was brought within six months after the first breach of the contract by the National Brick & Clay Company. The judgment is affirmed. Affirmed. Mr. Chief Justice McBride, Mr. Justice Bean and Mr. Justice McNary concur.