
    *Eber Maxfield v. Charles and Adamson Johnston.
    Count in assumpsit upon a receipt for money is good after verdict, although it omits to allege that the money was received for plaintiff’s use.
    This case was adjourned from the county of Portage, upon a motion made by the defendants in arrest of judgment.
    It was an action of assumpsit. The declaration contained two counts — the first was as follows:
    “For that whereas, the said Charles and Adamson heretofore, to wit, of August 21, 1818, at Nelson, in said county of Portage, made their certain memorandum in writing, commonly called a receipt, bearing date on the day and year aforesaid, their own proper hands and names being thereto subscribed, and then and there delivered said memorandum, or receipt, to the plaintiff, and thereby then and there acknowledged to have received on that day, of the said plaintiff, two hundred dollars. By means whereof the said Charles and Adamson then and there became liable to pay to said plaintiff the said sum of money, in said receipt specified, according to the tenor and effect thereof; and being so liable,” etc., charging the assumption and consideration in the usual form.
    Second count, for four hundred dollars, for work and labor; four hundred for wares and merchandise, money lent, received, and advanced in the common form.
    The jury found a general verdict for the plaintiff. The defendants moved in arrest of judgment, and assigned the following reasons:
    The verdict is general upon all the counts in the declaration, and the first count therein is insufficient in law to authorize the court to render judgment in this: that it is not alleged in said count that the said sum of money, therein mentioned, was had and received, or otherwise possessed by defendant, to the use or on account of the plaintiff, or other than for the defendant’s own use.
    Wright, in support of the motion:
    Where there are several counts in- a civil suit, and one bad, and a general verdict, judgment must be arrested. 1 Ch. Pl. 288, and notes.
    
      *The receipt of money by one person of another raises no implied assumpsit to pay, nor does a voluntary payment of money. A liability is raised upon a receipt to the use of plaintiff. In all cases of receipts the title arises from the use, and the moral obligation flowing from it to pay. 1 Ch. Pl. 89, and note; 4 Johns. 240; 1 Esp. Dig. 119.
    By the custom or law of merchants, the statute of Anne, and the statutes of Ohio, actions of assumpsit may be maintained upon promissory notes, upon the principle that the promise and the acknowledgment of value received is a sufficient consideration for the assumpsit. It is supposed a promise on paper, without the value re - ceived, would be a nud. pact. This has not been extended to receipts where they are declared on, unless they contain a promise to pay on account, or some acknowledgment showing in the plaintiff a subsisting interest. See form in Chit, on Bills, 530.
    It is not denied that the receipt would be evidence under the common count for money received to the use of plaintiff, from which they might deduce the use from the fact of the receipt, and if they found it the verdict would be good; but that is not the case of defective title.
    It is a well-settled rule that the allegations are always to .be construed strictly against the party pleading.
    Sloane and Newton, in reply:
    The foundation of this motion is the insufficiency of the first count in the plaintiff’s declaration, for the reason that the plaintiff has not set forth a good title or cause of action. This count describes a receipt, or memorandum in writing, concluding in the usual form, with an averment of a legal liability and an undertaking and promise to pay on the part of the defendant, and only wants an averment that the money therein mentioned was received by the defendant to the plaintiff’s use, in order to make the plaintiff’s title perfect. Whatever might have been the effect of the omission of this averment on demurrer, still it is aided by a verdict at common law; for, after verdict, every promise in a declaration is taken to be an express promise. Lawes on Plead, in Assumpsit, 76, n. 1, and 345, n. 1; Marine Insurance Co. v. *Young, 1 Cranch, 332; Beecker v. Beecker, 7 Johns. 103.
    Then, as the case now stands before the court on this-motion, there is an acknowledgment of the receipt of the money, and an 
      express promise to pay it on the part of the defendant, which certainly constitutes a good cause of action.
    Again, it is a general rule of law that a verdict will aid a titile defectively set out, but not a defective title; and from an examination of the authorities and decisions had under this rule, it is evident that the present case falls under the former description of title. The distinction between a defective title and a title defectively set out, as supported by the current of authorities, is thus defined in the books: “ If the promise do not appear to be warranted by the consideration stated, or it can not be collected from the record what contract was meant to be stated, or the contract stated appear to be such upon which an action of assumpsit will not lie, the defendant may take advantage of the objection by demurrer, or motion in arrest of judgment, or writ of error, even after verdict ; but where it may be collected from the record what special contract was meant to be stated, any defect or uncertainty in the statement on the record may, after verdict, be supplied by intending it to have been proved before the jury.” Dawes on Pleading in Assumpsit, 118, 119, and cases there cited. Also, where there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given the verdict, such defect, imperfection, or omission is cured by the verdict by common law. 1 Saund. 228, n. 1, and 28, n. 4; 1 Chitty Pl. 402, and notes, and 332, and notes; Tidd’s Prac. 826, and cases cited; 2 Bos. & Pul. 259, 267, 268.
    . When it is to be collected from the record what special contract was meant to be stated, any defect or omission, whether of form or substance, in the statement or the record, *may be supplied by intending proof before the jury. Indeed the court will infer almost anything after verdict. Ward v. Harris, 2 Bos. & Pul. 267, 268, and Da Costa v. Clark, 2 Bos. & Pul. 259; 1 Chitty Pl. 402, and notes; 1 Saund. 228, n. 1, and cases there collected; 5 East, 270; 11 Johns. 141; 12 Johns. 353; 15 Johns. 250.
    At common law, when anything is omitted in the declaration, though it be matter of substance, if it be such as that, without proving it at the trial, the plaintiff could not have had a verdict, and there be a verdict for the plaintiff, such omission shall not arrest the judgment. Tidd’s Prac. 826, and cases there cited.
    Now, in the present case, there has been a trial on the merits, and a verdict for the plaintiff, and the only defect or omission in the plaintiff’s declaration, necessary to make a good and perfect title, is the want of averment (assigned by the defendant’s counsel as the grounds of this motion), that the money was received by the defendant to the plaintiff's use; but, from the state of the pleadings, this fact must, of necessity, have been proved upon the trial, otherwise the court could not have directed the jury to give, and the jury could not have given, a verdict for the plaintiff.
    
    Furthermore, enough is stated in the declaration to say what contract was meant to be stated. Indeed the term's of the declaration are so plain and obvious that the court can not mistake it.
    If, then, it be a fair presumption, that the fact omitted in the declaration was proved upon the trial, and it may be collected from the record what special contract was meant to be stated, the judgment ought not to be arrested.
    The rule mentioned by the defendant’s counsel in argument, “ That allegations are always to be construed the strongest against the party pleading,” is true before verdict, but after verdict they shall be so construed as to support the verdict. 2 Bos. & Pul. 259.
   Opinion of the court, by

Judge Hitchcock:

The declaration in the present case contains several counts, and for a supposed defect in the first, it is moved to arrest the judgment. Where there is a general verdict for *the plaintiff upon a declaration containing several counts, and one of the counts is defective, the judgment will be arrested. It is mot, however, for every defect that such consequences shall follow. Mere formal defects are cured by verdict. Such ■ defects, too, as arise from the manner in which the title of the plaintiff is set forth, are cured by the verdict, provided sufficient appears to satisfy the court that tbe plaintiff had good cause of action. If however, it appears that.the plaintiff has no cause of action, or, in other words, that the title itself upon which he claims to recover is defective, such defect is not. cured by verdict. After a jury have passed upon a case, everything is to be presumed which consistently can be presumed to sustain their verdict.

The first count of the plaintiff’s declaration sets out that defend¡mis received of the plaintiff a specific sum of money which they promised to pay, etc. It is defective in this particular, that it does not state that the money was received to the plaintiff’s use. Had the declaration contained but a single count for money had and received by the defendants, to the use of the plaintiff, the receipt which is referred to in the present case would have been good evidence under such declaration to authorize the plaintiff to recover. It is manifest, then, that the count objected to sets out a good title, although it is done defectively. Aftdr verdict the court must presume that it was proven on the trial that the monej was received to the use of the plaintiff, otherwise the jury would not have found as they have done. The omission to state that the money was received to the use of the plaintiff is cured by the verdict. Whatever might have been the opinion of the court upon a demurrer to the declaration, it is now too late to take exception to it.

If the receipt of the money had been accompanied with an express promise to pay, it would have been equivalent to a promissory note. The consideration would have been sufficient to support the promise. After verdict every promise laid in the declaration is to be considered as an express promise. It is too late to say that it is no other promise than such as is implied in law. This case, then, is ^presented to the court as it would have been had there been an express promise to pay. Such promise would have been sufficient consideration to support it, and would be obligatory on the party. For this reason, therefore, the judgment can not be arrested.

Let judgment be entered for the plaintiff.  