McCarthy v. Frazier

BURNETT, J. In Cooper v. Hillsboro Garden Tracts, 78 Or. 74, 83 (152 Pac. 488, 491, Ann. Cas. 1917E, 840), this court, speaking by Mr, Justice Harris said: “The complaint might have been vulnerable to a demurrer if interposed before the commencement of the trial; but, no objection having been made until the introduction of testimony, the complaint must be liberally construed, and is entitled to all the intendments in its favor which could be invoked after a decision on the merits of the controversy: Schoellhamer v. Rometsch, 26 Or. 394 (38 Pac. 344); Currey v. Butcher, 37 Or. 380 (61 Pac. 631); Creecy v. Joy, 40 Or. 28 (66 Pac. 295); Patterson v. Patterson, 40 Or. 560 (67 Pac. 664); Bade v. Hibberd, 50 Or. 501 (93 Pac. 364); Davis v. Mitchell, 72 Or. 165 (142 Pac. 788); Weishaar v. Pendleton, 73 Or. 190 (144 Pac. 401); Smith v. National Surety Co., 77 Or. 17 (149 Pac. 1040).” The argument of the defendants’ counsel is based upon the language of the complaint in the statement about the conclusion of the accounting, and the contention is made therein that the items in question, being for the loss of one horse and damage to another, were matters of tort which could not be made the subject of an accounting. It may well be conceded that if we were bound by the ancient form of the common count of insimul computassent, the pleading here would be amenable to demurrer, or, if not, the plaintiff would fail in proof if he attempted to offer evidence only of a tort in support of his declaration. We are taught, however, in Section 64, L. O. L., that: [496] “All the forms of pleading heretofore existing in actions at law are abolished; and hereafter the forms of pleading in courts of record, and the rules by which the sufficiency of the pleadings is to be determined, shall be those prescribed by this Code.” And in Section 67, L. O. L., it is stated that: “The complaint shall contain * * a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition.” It is averred that in the outset the defendants agreed that if any of the personal property hired to them was lost or damaged they would pay the plaintiff the reasonable value of the property so lost. As the defendants hired the plaintiff’s property and lost some of it, it was assuredly competent for the parties to get together and agree upon the amount of the damage resulting from the breach of the contract, and for the defendants to promise to pay the amount thus agreed upon. This is what happened, according to the complaint. Certainly a cause of action arises out of such a transaction, and, all the facts having been stated, in the absence of a demurrer, we must sustain the verdict of the jury on the question. If we looked only at the few lines of the complaint which tell of an accounting, the contention of the defendants might be upheld. Other parts of the pleading must be given due effect, however, and at this stage of the case it matters not whether the plaintiff was suing for injury to his property, for' damage resulting from a breach of a contract of hiring, or to recover -on a promise to pay money. The facts are all stated out of which a good cause of action may be constructed. The facts themselves, and not necessarily the mere form in which they are stated, are what give force to a pleading. [497] It is urged that no consideration for the new agreement is stated. But we discern a consideration in the detriment happening to the plaintiff by reason of the default of the defendants. It is not a question of expressing a consideration within the meaning of the statute of frauds, but if the court, considering the facts stated by the pleader, can perceive a consideration, the pleading is sufficient jn the absence of demurrer and after verdict. The judgment is affirmed. 'Affirmed. McBride, C. J., and Benson and Harris, JJ., concur.