
    *William D. Nott and Clifford Belden v. Edmund Johnson.
    A promise by A to pay B five dollars per hour, or so much more as B might deem reasonable, for the use of B’s steam-tug during the night, should A need the same, A agreeing to employ, and employing, two scows in his service during the night, at his own risk, and B promising to keep up steam on his tug during the night, and assist A with the steam-tug, if required by A, is a contract which may be enforced by A, and is not an agreement without consideration.
    The consideration of a promise, mutual promises, and allegations relating to precedent conditions, etc., however informally or defectively averred or stated in the petition, can not be made the ground of arrest of judgment, if the petition disclose a cause of action. Every reasonable presumption and fair constructive intendment will be made to sustain the pleading after verdict.
    In error to the district court of Cuyahoga county.
    In July, 1854, Johnson filed a petition in the court of common pleas of Cuyahoga county, against the plaintiffs in error and one Horace Nott, in which he says “that the scow Mary Ann, of which he was the owner, on the 7th day of April, 1854, was ashore on the west side of the west pier at the harbor of Cleveland, and on that day the plaintiff hired of their owners the scows Helen and Eddy to go out of the harbor of Cleveland and light off the said Mary Ann, and at the same time employed the defendants with their steam-tug, called the ‘ Cliff Belden,’ to haul off the said Mary Ann when she should be raised by said scows. And plaintiff says that on said day he labored with said scows, assisted by said defendants with said steam-tug, until about sundown, in endeavoring to get the said Mary Ann afloat, and failed to do so; and said owners of said scows being unwilling to risk their said vessels outside during the night, were about to return to the harbor with said steam-tug, and thereupon plaintiff entered into a contract with defendants, by which the plaintiff promised and agreed to pay the defendants five dollars per hour, or so much more as the defendants might deem just and reasonable, for *the use of their said steam-tug during the night, should the plaintiff need the same; and the defendants' then and there, in consideration of this promise of the plaintiff, promised and agreed, if the plaintiff would remain out with said scows Helen and Eddy, and continue to labor at said Mary Ann, that they, the defendants, would return to the harbor with said steam-tug, and would there remain with her and keep up the steam on said tug during the night; and if at any time during the night the wind should change so as to endanger said scows Helen and Eddy, they, the defendants, would, if called on by plaintiff, comoout of the harbor with said tug and tow said scows, as well as the said Mary Ann (should she be afloat), into the harbor.
    “And plaintiff says, that upon the faith of the agreement so made with defendants, he contracted with the owners of said scows for their several scows to remain outside, and not to return to the harbor with the said tug; and the plaintiff agreed to pay all damages-which might happen to each of their said vessels by so remaining out of the harbor. And plaintiff says that said scows did upon this-arrangement remain outside, and during the night of said 7th day of April he succeeded, with the aid of said scows, in getting the said Mary Ann afloat, but soon after the wind changed and blew on shore, thereby endangering the said scows and the said Mary Ann; and plaintiff thereupon proceeded immediately to said steam-tug, lying in the harbor of Cleveland; but plaintiff says that defendants had permitted the steam to go down on said tug, and had gone on shore, and were nowhere to be found by the plaintiff; and the plaintiff says that he requested the engineer in charge of said steam-tug, and then on board of her, to get up steam and run out and tow in said scows and said Mary Ann; and said engineer refused to do so. And plaintiff says, that by reason of defendants’ neglecting to keep up the steam on said tug, and by refusing to go out and tow in said vessels as aforesaid, the said Helen and Eddy and the said Mary Ann were driven on shore by the wind; and by reason of this, the said Helen and Eddy were damaged; for which damage, together with the expenses of getting the said Helen and Eddy off shore, the plaintiff was compelled and obliged to pay the sum of seven * hundred and fifty dollars. And plaintiff says that by the aforesaid default he also sustained damage by the said Mary Ann a second time going on shore, in the sum of two thousand dollars. Thereupon the plaintiff demands judgment,” etc.
    To this petition the plaintiffs in error filed an answer, in which, after denying that Horace Nott ever had any interest in the steam-tug, or that Johnson had employed them with it to haul off the scow Maiw Ann when she should be raised by the scows Helen and Eddy, they say, that on or about the-7th day of April, 1854, “the said plaintiff did enter into a contract with them, by which they ■agreed to go with their said tug, during the hours of daylight and while it would be safe and prudent for said tug to go, and the weather would permit, and tow the said scow Mary Ann into the harbor of Cleveland when she should be raised by the scows Helen and Eddy, the said plaintiff giving them notice when the said scow should be raised as aforesaid. And the said plaintiff agreed to pay 'them for such service the sum of five dollars per hour while said tug was employed in said service. That in pursuance of said agreement, they went out several times during the day with said tug to ■said Mary Ann, and lay there waiting for said Mary Ann to be ■raised so that she could be towed into the harbor; . . . that the said William D. Nott and Clifford Belden run out from said tug to ■said scow all the lines they had on board said tug, and attached them to said scow, and attempted to haul her off from the ground on which she was then lying, and tow her into harbor; that they parted all their lines, and could not haul off said scow; . . . that on the parting of said lines, the men on board said Mary Ann and Helen and Eddy left said scows and'went ashore, and the said tug returned into said harbor, the wind then blowing a gale, the said tug having remained out as long as it was safe or prudent for her to do, and as long as she was bound to do.”
    The answer denies specifically all that part of the contract set forth in the petition in relation to keeping up steam on the tug ■during the night, and to going out during the night upon notice and -request to render assistance; and avers that the wind was so strong and the lake so rough that the tug could not have *gone out during the night with safety to herself or the lives of the seamen; and concludes with a denial of all damage, etc.
    At the February term, 1855, of the common pleas, Johnson recovered a verdict and judgment against William D. Nott and Clifford Belden, for $1,800; and they appealed to the district court. At the October term, 1855, of the district court, the cause was again tried to a jury, who returned a verdict for $500 against the same defendants, who thereupon filed their motion to have judgment entered in their favor, notwithstanding the verdict, “ for tho reason that upon the statements contained in the pleadings in said action, the said defendants were entitled by law to a judgment in their favor.” This motion was heard and overruled, and judgment entered on the verdict.
    , To reverse this judgment, is the object of the proceedings in this court.
    
      Prentiss, Prentiss & Newton, for plaintiffs in error :
    The petition in this case does not disclose any cause of action.
    The pretended contract therein set up is void :
    1. For want of consideration. 2 Kent’s Com. (8 ed.) 594; Parsons on Contr. 374; Tucker v. Woods, 12 Johns. 190; Keep & Hale v. Goodrich, Ib. 397; Lester v. Jewett, 12 Barb. 502; Sykes v, Dixon, 1 Per. & Dav. 463; Chit, on Contr. 542; Whiting v. Sullivan. 7 Mass. 107; Dorsey v. Packwood, 12 How. 126; Mactier v. Frith, 6 Wend. 103; Thorne v. Deas, 4 Johns. 84.
    2. For want of certainty. Chit, on Contr. (6 Am. ed.) 72; Guthing v. Lynn, 2 Barn. & Adolph. 232; Cave v. Coleman, 3 Man. & Ry. 2; Nelson v. Von Bonnhorst, Am. Law Reg. vol. 6, Nos. 2 and 3.
    
      Paine & Wade, contra
   Sutliff, J.

The plaintiffs in error present for our consideration the single question: Ought the judgment of the district court, upon their motion in arrest of judgment, to have been entered in their favor ?

*The answer to this question depends, as suggested by counsel for plaintiffs in error, upon the question, whether the petition discloses any cause of action. If it does not, the motion should have been sustained. If it does, the motion was properly refused.

A cause of action may be so inartificially or defectively stated as to be insufficient, when objected to by demurrer, to authorize a judgment; and at the same time, if not so objected to, the defects may be so far cured in certain cases, by verdict, as to authorize a judgment upon the verdict. And whenever the defects are so cured by verdict, it is the duty of the court to enter the judgment accordingly. The general rule is, that while a defective title is never cured by verdict, a good title defectively stated may be. A legal cause of action substantially set forth, although so inartificially stated as to be bad, if specially objected to by demurrer, is sufficient after verdict, and a judgment rendered thereon is good. Tidd’s Prac. 928; 2 Mass. 521; 3 Ib. 160; 23 Vt. 656.

The plaintiffs in error, defendants below, not only did not object by demurrer to the sufficiency of the statement of the contract set up in the petition, but filed an answer, instead of a demurrer, to the petition, and in that answer set forth a contract in many respects similar in its terms to the one stated in the petition. They also admit that they entered upon the performance of the contract, and were to receive five dollars per hour for the service through the day, while rendering service. They however deny that they agreed to continue to render services as wanted through the night, as stated in the petition.

Indeed, there seems to have been no denial, on the part of the plaintiffs in error, that a contract was made by the parties, until after final verdict in the district court. But this can not supersede the necessity that the petition should disclose a cause of action.

The question presented to us is not whether a cause of action is .properly set forth in the petition, but simply whether it discloses substantially the existence of a cause of action.

The general rule that “ a verdict will aid a good title defectively *set out, but not a defective title,” requires all reasonable presumptions in favor and support of the verdict.

Under the application of this common-law rule of practice the courts have long held that where the pleadings disclose a cause of action substantially stated, defects, imperfections, and omissions in pleading, either in substance or form, which might have been fatal on demurrer, are usually cured by verdict. “ Such defect is not any jeofail after verdict.” 1 Sand. 228, note 1; Tidd’s Pr. 918, 919; Sell. Pr.; Maxfield v. Johnson, 2 Ohio. 204.

Indeed it has been well remarked that there are but few errors that can be taken advantage of by motion in arrest of judgment y as, in order to sustain such a motion, it must appear from the declaration or petition that .the plaintiff has no cause of action stated and not merely that his cause of action is defectively stated.

The principal objection urged by plaintiffs in error against the sufficiency of the cause of action disclosed by the petition, is the want of a proper statement of the consideration. As already remarked, such a defect, if it really existed in the statement of a cause of action substantially set forth, could not be taken advantage of by motion, in arrest of judgment after verdict. It should have been met by demurrer.

But is it true that a sufficient consideration is not well stated in the petition ?

A consideration may be a valuable one — that is, one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made ; or it may consist in a mutual concurrent promise. And a promise made on such a consideration can not be regarded as nudum pactum, and void for want of consideration. 1 Parsons on Contr. 373, and cases there cited.

The petition contains the averment that the “ plaintiff entered into a contract with the defendants, by which the plaintiff promised and agreed to pay the defendants five dollars per hour, etc., for the use of their said steam-tug during the night, should the plaintiff need the same, and the defendants, in consideration of this promise *of the plaintiff, promised and agreed, if the plaintiff would remain out'with said scows Helen and Eddy, and continue to labor at said Mary Ann, that they, the defendants, would return to the harbor with said steam-tug, and would there remain with her and beep up the steam on said tug during the night; and if ■ the wind should change so as to'endanger said scows Helen and Eddy, they, the defendants, would, if called on by plaintiff, come out of the harbor with said tug and tow said scows, as well as the said Mary Ann (should she be afloat), into the harbor; and that upon the faith of said agreement, ■ ... he contracted with the owners of said scows for said scows to remain outside, and not to return to the harbor, and the plaintiff agreed to pay all damages which might happen said vessels by so remaining out of harbor.”

The petition does then aver that, in consideration of the remuneration to be made by the plaintiff, the defendants promised, upon plaintiff remaining out of harbor with said scows Helen and Eddy, and continue to labor to get the Mary Anm afloat, that they would return into harbor with their tug; would there remain and beep up steam during the night; and if at any time during the night the wind should change, they, on notice, would come out of harbor and tow in the two scows, and the other, if afloat. Here, then, a mutual concurrent promise, which we have seen is a good consideration for a promise, is clearly set forth in the petition, as a consider.ation for the promise which the defendants are charged with having .made and disregarded.

The petition also sets forth a further consideration, and one which falls, obviously, under the definition of a valuable consideration. It is charged that, in consideration of the promise of remuneration so made them by plaintiff, the defendants “ promised and agreed ” if the plaintiff would remain out with said scows and continue to labor -at said Mary Ann, that they, the defendants, would return into harbor, and keep themselves in readiness, whenever requested during the night, to render the requisite assistance with their steam-tug to rescue said scows from the danger consequent upon their being so kept out of harbor by the plaintiff in order to increase the defend■ants’ chances to receive *their proposed remuneration; and the petition distinctly avers that upon the faith of the agreement so made with defendants, he contracted with the owners of said scows for them to remain out, and agreed to pay all damages which might happen to them in so remaining out. Here, then, is the averment of a valuable consideration to support the promise of defendants, to keep themselves in readiness to run out of the harboi* with the tug and tow in the scows. The petition sets forth a prejudice to the party to whom the promise of defendants .was made; that the plaintiff, at their request, and for their advantage, in order to increase the chances of getting the Mary Ann afloat, and thereby insuring defendants their remuneration, did hire the scows to remain out of harbor at his risk. And this risk of damage so assumed by plaintiff at request of defendants, and as part of the condition and consideration of their promise to keep their steam-tug in readiness to afford immediate relief, doubtless would not 'have been assumed by the plaintiff had he not relied with confidence upon the promise of defendants.

The petition also states the full performance, on the part of plaintiff, and the actual occurrence of all the conditions to make the promise of defendants, to go out of the harbor and tow in the scows, absolute and obligatory. The petition states the remaining out of the scows, the fact of their succeeding in getting the Mary Ann afloat, the change of wind endangering the scows, and that the plaintiff called upon the engineer on board the steam-tug, and gave the requisite notice and request for the promised assistance of defendants.

By fulfilling their promise, and rendering the assistance which they had contracted to do, according to the statements of the petition, the defendants would not only have secured to themselves the liberal remuneration stipulated for in their contract, but would doubtless have saved the plaintiff from the damage which he complains of having sustained by reason of their delinquency.

But whatever may be said as to the sufficiency or insufficiency of the form of stating the cause of action, if the same had been met by a special demurrer, there can be no doubt that the petition *discloses a good cause of action, substantially set forth, and that the motion in arrest of judgment was properly overruled.

Judgment affirmed.

Bartley, C. J., and Swan, Brinkerhofe, and Scott, JJ., concurred.  