Hurd v. Simonton

By the Court — Berry, J. — It is contended that the judgment in this action should be reversed for the reason, among others, that the complaint fails to state a cause of action. The particular objection pointed out is that no demand is alleged to have been made for the colt charged to have been wrongfully detained by the defendant below. We are referred to Stratton vs. Allen & Chase, 7 Minn., 505, in which it was held that a complaint was fatally defective for want of such an allegation in a case similar to this. The case at bar is to be distinguished from Stratton vs. Allen d Chase, because here was a verdict. The rule seems to be that when a complaint is defective because a particular matter is not stated in express terms, and yet contains general allegations sufficient to comprehend such matter in fair and reasonable intendment, which allegations are such as to require proof of the particular matter in order to entitle the plaintiff to recover, the defect, will be aided by a verdict in his favor. 1 Ch. Pl., 672 et seq.; Van Sant. Pl., 530; Pub. Stat., 554, sec. 96. The general allegation in this case is, “that the defendant wrongfully detains,” &e. And although this may be to some extent a state.ment of a conclusion of law, we are inclined to hold it sufficient after verdict. For if a demand and refusal were necessary in or427 tier to make the detention wrongful, then the fact of such demand and refusal is implied in the general allegation which could not be sustained without proof of such fact. Lambert vs. Taylor et al., 4 B. & C., 138. Many authorities hold that the want of an allegation of notice or demand though fatal on demurrer, is ordinarily cured by verdict. 1 Ch. Pl., 328, 330; 16 Man., 94; 9 Cush. 131. The majority of the Court are of opinion that the remaining point made by the appellant, to wit: that the taxation of costs and disbursements below was erroneous, is not well taken here. This opinion is'based upon the ground that it has been settled in numerous cases in this Court that application for the correction of alleged errors in such taxation must be’ made in the first instance to the District Court. No such application was made in this case. I am not myself satisfied with this disposition of the matter, especially in view of the circumstances of this case, and of Rule 36 of the present District Court rules. But in accordance with the opinion of the majority of the Court, the judgment'below is affirmed.