Crowther v. Elliott

¶1The opinion of the court was delivered by

¶2i.practice; wairaT’ The record in this case presents a somewhat novel course of proceedings. It appears from it that a jury was empanneled and sworn, evidence submitted, and “the parties rested the case,” at which point in the proceedings the defendant demurred on the ground that the petition did not state facts that constituted a cause of action, which demurrer was argued and sustained, to “ which ruling of the court, in sustaining the demurrer,” plaintiff excepted. There is no exception to the filing of the demurrer, or to its hearing; so that much of the brief of plaintiff’ in error is wasted, as those errors not excepted to are deemed waived.

¶3*238.2 Pleading; sufficiency,*237Does the petition state a cause of action? We think *238it does, very awkwardly and inartistically certainly, but we cannot be mistaken in tbe fact that the defendant was made aware of just what the plaintiff complained of, and the relief he sought. “ The ■“court must tolerate modes of statement unsuited to -“ orderly arrangement; the use of words unaptly applied; “ involved sentences, lacking simplicity, and logical accuracy,” if from the whole petition the nature of the charge can be ascertained. We find no difficulty in doing so in this case. The 'contract is made a part of the petition, and is not difficult of construction. The plaintiff says he has duly performed all the conditions imposed upon him by the contract, and specifies. wherein the defendant has broken his. “In the construction of any pleading, for the purpose of determining its effect, its allegations shall be liberally construed, with a view to substantial justice between the parties.” Civil Code, •§ 115. The petition construed by this section must be held good, and the judgment reversed, and the cause sent back for further proceedings.