Syme v. Steamboat Indiana

RICHARDSON, Judge, delivered the opinion of the court. The only question in this case is whether the petition is sufficient to support the judgment. It will be observed that the petition omits to charge that the defendant was a common carrier or that the goods were ever received, or that the defendant had converted them, or that there was any con — 337 — sideration for tbe alleged -undertaking. The defendant did not demur, but in tbe answer denied the allegations in the petition, and took the objection, on the trial, that the petition did not state facts sufficient to constitute a cause of action, and opposed the introduction of any evidence on the part of the plaintiffs. If the petition had averred that the defendant was a common carrier, then, in consequence of the public employment voluntarily assumed, the boat would not only have been bound to receive the goods offered for carriage, but to have transported them to St. Louis, and, though no special contract had been made to pay a certain sum, it could have been safely averred that the undertaking was for a reasonable reward, as the right to compensation would have existed. But the petition states no fact that imposed any obligation on the defendant, and it omits the averment of any circumstances to distinguish the case from an ordinary gratuitous bailment. It does not even allege that the defendant ever received the goods, but only states a promise without any consideration to carry them. The defendant might have demurred successfully to the petition. But the right to object at the trial, or on a motion in arrest, was not waived by the omission to demur, for the statute expressly provides that the objection, that the petition does not state facts sufficient to constitute a cause of action, is not waived by a failure to demur. (2 R. C. 1855, p. 1231; Andrews v. Lynch, 27 Mo. 167; Welch v. Bryan, 28 Mo. 30; Montgomery Co. Bank v. Albany City Bank, 7 N. Y. 464; Could v. Glass, 19 Barb. 185.) It is not necessary for a party to prove more than he alleges, and it can not be supposed that a cause of action has been proved when none is stated. With the concurrence of the other judges, the judgment will be reversed and the cause remanded.