1 simply absurd, was the origin of the technicality and excessive precision, which, more than any other features, characterized the ancient system in its condition of highest development. All the codes contain the following provision, or one substantially the same: "In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties." The evident intent of the legislature in this clause was to abrogate at one blow the ancient dogma, and to introduce in its place the contrary principle of a liberal and equitable construction; that is, a construction in accordance with the general nature and design of the pleading as a whole. This mode of interpretation does not require a leaning in favor of the pleader in place of the former tendency against him; it demands a natural spirit of fairness and equity in ascertaining the meaning of any particular averment or group of averments from their relation and connection with the entire pleading and from its general purpose and object. The courts have uniformly adopted this view of the provision; and although in particular instances they may sometimes have departed from it, yet, in their announcement of the theory, they have unanimously conceded that the stern doctrine of the common law has been abolished, and that, instead thereof, an equitable mode of construction has been substituted. From the multitudes of decisions which maintain this position with more or less emphasis I select a few examples, and other illustrations will be subsequently given. The § 441. *547. Judicial Approval of Liberal Construction. New York Court of Appeals, while construing a complaint, said: "The language is clearly susceptible of this interpretation; and if so, that interpretation should be given in preference to [another which was stated]. If the language admits of the latter interpretation, it may be said to be ambiguous, and that is all. It is not true that under the code, if there be uncertainty in respect to the nature of the charge, it is to be construed strictly against the pleader. By § 159, in the construction of a pleading, its allegations must be liberally construed with a view to substantial justice." 2 The language used by the Supreme Court of Wisconsin in a similar case is still stronger: "Contrary to the common-law rule, every reasonable intendment and presumption is to be made 2 Olcott v. Carroll, 39 N. Y. 436, 438. [See §*434, note 1.] "1 in favor of the pleading." The same interpretation is given. to the provision in Iowa; the old dogma of leaning against the pleader is abandoned, and a liberal and equitable construction is now the rule. The practical force and operation of this principle, and how much effect it actually produces in the judicial process of construing pleadings, can best be seen by an examination of the decisions in which it has been invoked. A few of them have therefore been selected, and placed in the foot-note.3 1 Morse . Gilman, 16 Wis. 504, 507. See also Hazleton v. Urrion Bk. of Columbus, 32 Wis. 34, 42, 43, which holds that greater latitude of presumption is admitted to sustain a complaint, when objection to it is not made until the trial, after issues have been formed by an answer. 2 Shank v. Teeple, 33 Iowa, 189, 191; Foster v. Elliott, 33 Iowa, 216, 223; Gray v. Coan, 23 Iowa, 344; Doolittle v. Green, 32 Iowa, 123, 124. 8 McGlasson v. Bradford, 7 Bush, 250, 252; Joubert v. Carlı, 26 Wis. 594; Clay v. Edgerton, 19 Ohio St. 549; supra, § * 535 ; Gunn v. Madigan, 28 Wis. 158, 164; Robson v. Comstock, 8 Wis. 372, 374, 375; Morse v. Gilman, 16 Wis. 504. As further examples, see Bushey ». Reynolds, 31 Ark. 657; Thompson v. Killian, 25 Minn. 111; Ferguson v. Va. & T. R. Co., 13 Nev. 184; Childers . Verner, 12 S. C. 1; Wilkins v. Moore, 20 Kan. 538; Strong v. Hoos, 41 Wis. 659; Whitman v. Watry, 44 id. 491; Evans v. Neale, 69 Ind. 148; Moore v. Moore, 56 Cal. 89; Wilcox v. Hausch, 57 id. 139; McAllister v. Welker, 39 Minn. 535; Isaacs v. Holland, 1 Wash, 54. [Construction of Pleadings. Pleadings are to be construed liberally with a view to substantial justice between the parties: Guy v. McDaniel (1897), 51 S. C. 436, 29 S. E. 196; Cone v. Ivinson (1893). 4 Wyo. 203, 31 Pac. 31; McArthur r. Clarke Drug Co. (1896), 48 Neb. 899, 67 N. W. 861; Hartzell v. McClurg (1898), 54 Neb. 313, 74 N. W. 625; Miller v. Bayer (1896), 94 Wis. 123, 68 N. W. 869; South Bend Chilled Plow Co. v. Geo. C. Cribb Co. (1897), 97 Wis. 230, 72 N. W. 749; Benolkin v. Guthrie (1901), 111 Wis. 554, 87 N. W. 466; Sage v. Culver (1895), 147 N. Y. 241, 41 N. E. 513; Dailey v. Burlington, etc. Ry. Co. (1899), 58 Neb. 396, 78 N. W. 722; Roberts v. Samson (1897), 50 Neb. 745, 70 N. W. 384; Wenk v. City of New York (1902), 171 N. Y. 607, 64 N. E. 509; Coatsworth v. Lehigh Valley Ry. Co. (1898), 156 N. Y. 451, 51 N. E. 301; Kain v. Larkin (1894), 141 N. Y. 144, 39 N. E. 9; United States Saving Co. v. Harris (1895), 142 Ind. 226, 40 N. E. 1072; Strong v. Weir (1896), 47 S. C. 307, 25 S. E. 157; Waggy v. Scott (1896), 29 Ore. 386, 45 Pac. 774; Hood v. Nicholson (1896), 137 Mo. 400, 38 S. W. 1095; Vogelgesang v. City of St Louis (1897), 139 Mo. 127, 40 S W. 653; Baird v. Citizens' Ry. Co. (1898), 146 Mo. 265, 48 S. W. 78; Ingraham v. Lyon (1894), 105 Cal. 254, 38 Pac. 892 (but see California cases cited infra, holding that pleadings are to be construed most strongly against the pleader); Hall v. Woolery (1898), 20 Wash. 440, 55 Pac. 562, holding that in the absence of a demurrer, a complaint is entitled to a liberal construction; Blumenthal v. Pacific Meat Co. (1895), 12 Wash. 331, 41 Pac. 47, to same effect. The case of Cone v. Ivinson (supra), 4 Wyo. 203, has a very elaborate discussion of the question of construction. Pomeroy, Bliss, Swan, and Maxwell are all copiously quoted, and the authorities are thoroughly reviewed, a strong dissenting opinion being filed. Upon a rehearing being granted, the case was thoroughly reargued, the court adhering to its original position. A pleading must be held to allege all the facts that can be implied by fair and reasonable intendment from the facts expressly stated: Sage v. Culver (1895), 147 N. Y. 241, 41 N. E. 513; Kain v. Larkin (1894), 141 N. Y. 144, 39 N. E. 9; Coatsworth v. Lehigh Valley Ry. Co. (1898), 156 N. Y. 451, 51 N. E. 301; Wenk v. City of New York (1902), 171 N. Y. 607, 64 N. E. 509; Roberts v. Samson (1897), In a very small number of cases, however, the courts seem to have overlooked this change made by the statute, and have 50 Neb. 745, 70 N. W. 384; Dailey v. Burlington, etc. R. R. Co. (1899), 58 Neb. 396, 78 N. W. 722; Miller v. Bayer (1896), 94 Wis. 123, 68 N. W. 869. Where a pleading is assailed for the first time by a demurrer ore tenus, it will be construed liberally: National Fire Ins. Co. v. Eastern Building & Loan Ass'n (1902), 63 Neb. 698, 88 N. W. 863; First Nat. Bank v. Pennington (1899), 57 Neb. 404, 77 N. W. 1084; Holtz v. Hanson (1902), 115 Wis. 236, 91 N. W. 663; Werner v. Ascher (1893), 86 Wis. 349, 56 N. W. 869; Phillips v. Carver (1898), 99 Wis. 561, 75 N. W. 432; Winkler v. Racine Wagon, etc. Co. (1898), 99 Wis. 184, 74 N. W. 973. A pleading attacked for the first time in the Supreme Court on the ground that it does not state a cause of action, will be liberally construed: Omaha Nat. Bank v. Kiper (1900), 60 Neb. 33, 82 N. W. 102; Fowler v. Phoenix Ins. Co. (1899), 35 Ore. 559, 57 Pac. 421; Roseburg Ry. Co. v. Nosler (1900), 37 Ore. 299, 60 Pac. 904. See also First Nat. Bank v. Tompkins (1903), Neb. -, 94 N. W. 717. When a complaint is attacked after judgment for want of facts to state a cause of action, it must be liberally construed: Mosher v. Bruhn (1896), 15 Wash. 332, 46 Pac. 397; Cobb v. Lindell Ry. Co. (1899), 149 Mo. 135, 50 S. W. 310; Merrill v. Equitable Farm & Stock, etc. Co. (1896), 49 Neb. 198, 68 N. W. 365; American Fire Ins. Co. v. Landfare (1898), 56 Neb. 482, 76 N. W. 1068. A decree for plaintiff will cure the inadvertent omission of the word "not" in a complaint: Wyatt v. Wyatt (1897), 31 Ore. 531, 49 Pac. 855. See also Montesano v. Blair (1895), 12 Wash. 188, 40 Pac. 731; State ex rel. v. Renshaw (1902), 166 Mo. 682, 66 S. W. 953; Milner v. Harris (1903), — Neb. —, 95 N. W. 682. Imperfect allegations have frequently been held to be aided by verdict or judgment. See Hall v. Southern Pac. Co. (1899), Ariz., 57 Pac. 617; Ades v. Levi (1893), 137 Ind. 506, 37 N. E. 388; Philomath v. Ingle (1902), 41 Ore. 289, 68 Pac. 803; Chan Sing v. City of Portland (1900), 37 Ore. 68, 60 Pac. 718; Mass. Benefit Ass'n v. Richart (1896), 99 Ky. 302, 35 S. W. 541; Louisville, etc. R. R. Co. v. Lawes (1900), Ky., 56 S. W. 426; Hill v. Ragland (1902), Ky., 70 S W. 634; Salmon Falls Bank v. Leyser (1893), 116 Mo. 51, 22 S. W. 504; People's Bank v. Scalzo (1894), 127 Mo. 164, 29 S. W. 1032; Nicolai v. Krimbel (1896), 29 Ore. 76, 43 Pac. 865; Miller . Hirschberg (1895), 27 Ore 522, 40 Pac. 506. But it has been held that such aider does not take place where the complaint is radically defective: Nye v. Bill Nye Min. Co. (1903), 42 Ore. 560, 71 Pac. 1043. Compare Gustin v. Concordia Ins. Co. (1901), 164 Mo. 172, 64 S. W. 128. When objection is made for the first time on the trial that the complaint does not state facts constituting a cause of action, the pleading will be sustained if possible: Johnston v. Spencer (1897), 51 Neb. 198, 70 N. W. 982; Chicago, Burlington, etc. R. R. Co. v. Spirk (1897), 51 Neb. 167, 70 N. W. 926; Peterson v. Hopewell (1898), 55 Neb. 670, 76 N. W. 451; Butts v. Kingman & Co. (1900), 60 Neb. 224, 82 N. W. 854; Anderson v. Alseth (1895), 6 S. D. 566, 62 N. W. 435; Whitbeck v. Sees (1898), 10 S. D. 417, 73 N. W. 915; Broyhill v. Norton (1903), 175 Mo. 190, 74 S. W. 1024; Seibert v. Minneapolis, etc. Ry. Co. (1894), 58 Minn. 39, 59 N. W. 822 ; Commonwealth Title Ins. Co. v. Dokko (1898), 71 Minn 533, 71 N. W. 891. When objections are made to the introduction of evidence on the ground that the petition fails to state a cause of action, the pleading will be liberally construed: Zug v. Forgan (1902), Neb., 90 N. W. 1129; Fire Ass'n of Philadelphia v. Ruby (1900), 60 Neb. 216, 82 N. W. 629; Norfolk Beet Sugar Co. v. Hight (1898), 56 Neb. 162, 76 N. W. 566. expressly declared that the construction must be adverse to the pleader, thus recognizing the and reply were read together to determine the intent of the pleader: Lavery v. Arnold (1899), 36 Ore. 84, 58 Pac. 524; "where a complaint contains words which, if properly arranged, might state two causes of action, it will be construed as stating only the one principally intended : Santa Fe, etc. Ry. Co. v. Hurley (1894), Ariz., 36 Pac. 216; where a complaint may be treated as setting out a cause of action either ex contractu or ex delicto, and the action would be barred if treated as ex delicto, it will be treated as ex contractu: St. Louis, etc. R. R. Co. v. Sweet (1897), 63 Ark. 563, 40 S. W. 463; the words "entered into" were construed to equal “executed,” and the allegation of the execution of a bond was held to include the performance of every act essential to the making and approval of the bond: Fire Ass'n of Philadelphia v. Ruby (1900), 60 Neb. 216, 82 N. W. 629; an allegation that a child was six years of age, held to include an allegation that said child was unmarried, in an action for the death of an unmarried minor child: Baird v. Citizens' Ry. Co. (1898), 146 Mo. 265, 48 S. W. 78; facts not conclusions control in construction of pleading: Spargur v. Romine (1893), 38 Neb. 736, 57 N. W. 523; where it is not clear whether the action is legal or equitable, it should be so construed as to maintain the jurisdiction of the court: Adams v. Hayes (1897), 120 N. C. 383, 27 S. E. 47; a pleading in the form of an indictment will be considered as a complaint if the necessary facts are alleged St. Louis, etc. R. R. Co. v. State (1901), 68 Ark. 561, 60 S. W. 654. The Supreme Court of Missouri, in the case of Hood v. Nicholson (1896), 137 Mo. 400, 38 S. W. 1095, used the following language respecting the limits applicable to the liberal construction of pleadings: 'Courts, to prevent delays and avoid hardships, will disregard all defects in pleadings which do not affect the substantial rights of the adverse party, and will disregard form and look to the substance and at all times give such interpretation to language used as fairly appears to have been intended by its author; yet it is not authorized to rob, by construction, lan ancient rule as still in force; 1 guage of its plain and obvious meaning, or of the fair, reasonable, and obvious conclusion to be deduced therefrom, to enable its author to relieve himself from a position of embarrassment where by its use he has voluntarily placed himself." In Chicago, etc. R. R. Co. v. Haywood (1897), 102 Ia. 392, 71 N. W. 358, the court said: "Where the right of recovery is based upon a written contract, as in this case, and the averment of facts constituting another cause of action is necessary to bring the remedy sought within the terms of the contract, then it will be assumed that only one cause of action was intended. In other words, parties are presumed to follow the requirements of statute in preparing their pleadings, and a single count or division of a petition will not be construed to state two causes of action unless the purpose of the pleader so to do clearly appears."] 1 Commonwealth v. Cook, 8 Bush, 220, 224; Wright v. McCormick, 67 N. C. 27. And see Rogers v. Shannon, 52 Cal. 99; Henley v. Wilson, 77 N. C. 216 (commonlaw rule applied; ambiguous language strictly construed against the pleader; no intendments in his favor); Jaffe v. Lilienthal, 86 Cal. 91; Loehr v. Murphy, 45 Mo. App. 519. [In the following cases it is held that the pleadings are to be construed most strongly against the pleader: Mays v. Carman (1902), Ky., 66 S. W. 1019; Friend v. Allen (1900), Ky., 56 S. W. 418; Goff v. Marsden Co. (1900), Ky., 56 S. W. 667; Fox v. Mackey (1899), 125 Cal. 54, 57 Pac. 672; California Navigation Co. v. Union Transp. Co. (1898), 122 Cal. 641, 55 Pac. 591; Siskiyon Lumber Co. v. Rostel (1898), 121 Cal. 511, 53 Pac. 1118; Heller v. Dyerville Mfg. Co. (1897), 116 Cal. 127, 47 Pac. 1016; Callahan v. Loughrau (1894), 102 Cal. 476, 36 Pac. 835 (but see Ingraham v. Lyon (1894), 105 Cal. 254, 38 Pac. 892, where the liberal view is announced); Holt v. Pearson (1895), 12 Utah, 63, 41 Pac. 560 (expressly overruled in Mangum v. Bullion, etc. Co. (1897), 15 Utah, 534, 50 Pac. 834); Johnston v. Meaghr (1897), 14 Utah, 426, 47 Pac. 861, holding that, on demurrer, pleadings are while in some others the judicial action was clearly based upon that old doctrine, although it was not formally announced in the opinions. Under the light of this beneficent but new principle, that pleadings are to be construed fairly, equitably, and liberally, with a view to promote the ends of justice, and not enforce any arbitrary and technical dogmas, I shall proceed to consider, in the order already indicated, the several practical rules mentioned above, which regulate the manner of setting forth the cause of action or the defence. § 442. *548. I. Insufficient, Imperfect, Incomplete, or Informal Allegations, and the Mode of Objecting to and Correcting them. Distinction between Imperfect and wholly Deficient Allegations. The codes clearly intend to draw a broad line of distinction between an entire failure to state any cause of action or defence, on the one side, which is to be taken advantage of either by the general demurrer for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or a defence in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the pleading more definite and certain by amendment. The courts have, in the main, endeavored to preserve this distinction, but not always with success; since averments have sometimes been treated as merely incomplete, and the pleadings containing them have been sustained on demurrer, which appeared to state no cause of action or defence whatever; while, in other instances, pleadings have been pronounced wholly defective and therefore bad on demurrer, or incapable of admitting any evidence, the allegations of which appear to have been simply imperfect or incomplete. It is undoubtedly difficult to discriminate between to be construed most strongly against the pleader, but, after trial, in the pleader's favor; Oregon & Cal. R. R. Co. v. Jackson County (1901), 38 Ore. 589, 64 Pac. 307, holding that, when tested by demurrer, the allegations of a pleading are to be construed most strongly against the pleader, but after pleading over all intendments must be indulged in favor of its sufficiency; Mellott v. Downing (1901), 39 Ore. 218, 64 Pac. 393 (to the same effect); Patterson v. Patterson (1902), 40 Ore. 560, 67 Pac. 664 (to same effect); Conrad Nat. Bank v. Great Northern Ry. Co. (1900), 24 Mont. 178, 61 Pac. 1; Fidelity & Casualty Co. v. Vandyke (1896), 99 Ga. 542, 27 S. E. 709. In Blumenthal v. Pacific Meat Co. (1895), 12 Wash. 331, 41 Pac. 47, the court seems to favor a somewhat strict construction when the pleading is attacked by motion or demurrer.] 1 For examples, see Hathaway v. Quinby, 1 N. Y. S. C. 386; Doyle v. Phoenix Ins. Co., 44 Cal. 264; Scofield v. Whitelegge, 49 N. Y. 259, 261; Holmes v. Williams, 16 Minn. 164, 168. |