
    William N. Delashman et al. v. Ezra Berry, Executor of George A. Kellogg.
    
      Pleading: Declaration in debt uxwn a bond: Insufficient assignment of breach: What cured by verdict: And what not. An averment in a declaration in an action of debt, upon a bond given on appeal from a judgment of a Circuit Court Commissioner, to the Circuit Court in a proceeding to obtain restitution of premises under § 25, Laws of 1801, p. 466-7, tliaj the defendant “ did not forthwith pay the rent due orto "become due,” is not equivalent to an averment that any rent was actually due; and for that reason the declaration would be demurrable; yet, it contains, nevertheless, such an argumentative statement that some rent was due, or was at least claimed to he due; that, after verdict, proof of this fact may be presumed, and the judgment entered thereon, sustained.
    But where, on such a declaration, the plaintiff’s right to recover depends upon the fact that he has obtained restitution of the premises, an averment that the Circuit Court “ adjudged that the said complainant in said suit have restitution of the premises,” — and the breach assigned, being that the complainant had “ obtained restitution of the same, as aforesaidwould not only be demurrable, but the defect would not he cured by a verdict; because the pleader does not base his right to recover upon the actual restitution of the premises, — which was an essential fact in the condition of the bond, — but upon his having obtained a judgment of restitution; thus claiming that the judgment itself constituted restitution. Upon such a theory there can be no inference of actual restitution; and a judgment founded upon it would he erroneous,
    
      Statute of amendments: § 5, Oh. 129, Comp. Laws. A fact necessary to be proved to justify a recovery not averred in the declaration, if it be plainly inferable from any fact stated in, or by the case made iy the declaration, will, after .verdict, be presumed to have been proved. Sub. 8 of % hk!9, Comp. Laws, is to be construed as intending to adopt the common-law rule. — Kean v. Mitchell, 13 Mich., 213.
    
    
      Heard October 6.
    
    
      Decided October 18.
    
    Error to Branch Circuit.
    This was an action of debt brought by Ezra Berry, Executor of George A. Kellogg, in the Circuit Court for the County of Branch against William K. Delashman, Franklin L. Warren, and Tbomas J. Bridge upon a bond executed by Delashman as principal and the other two defendants as sureties. The declaration recites a proceeding before a Circuit Court -Commissioner, by the plaintiff’s testator against the defendant Delashman to obtain restitution of premises under chapter 150 of the Compiled Laws, a judgment against Delashman, and an appeal to the Circuit Court, on which the bond declared on was given, the condition of which was: “That in case the said George A. Kellogg shall obtain restitution of the premises described in the said complaint, in said suit, upon the said appeal, if the said William N. Delashman shall forthwith pay all the rent due or to become due to the said George A. Kellogg, complainant, for the said premises up to the time when the said George A. Kellogg, complainant, shall obtain possession thereof, together with costs of suit, in prosecuting said complaint and obtaining restitution of the said premises, then the said obligation to be void.”
    The breach of the bond was assigned in these words: “ On the 4th day of April, 1868, such proceedings were then and there had in the said appeal of the said William N. Delashman' in the Circuit Court for the County of Branch, that by the consideration and judgment of the said Court it was amongst other things ordered and adjudged that the said complainant in said suit have restitution of the premises described in the said complaint in said cause, and that the said complainant in said cause do recover against the said William N. Delashman, his costs and charges by him about his suit in that behalf expended to be taxed, and that he have execution thereof; — of all which the said defendants afterwards, to wit: on the day and year' 'last aforesaid, had notice. And the said plaintiff further-says that the said William N. Delashman did not forthwith pay the rent due, or to become due, to the said George A. Kellogg, complainant, for the said premises up to the time-when the said complainant obtained restitution of the. same, as aforesaid, together with the costs of suit-, in, prosecuting, said complaint and obtaining restitution of the. said premises,, which were by the said Court awarded and adjudged against; the said William N. Delashman,” etc.,
    The defendants pleaded the general issue, and. on, tito trial before the Court without a jury, the Court found for the plaintiff, and'assessed his damages at the sum of three hundred and seyenty-one dollars and eighty-six cents; and the judgment entered thereon comes into this Court by writ of error.
    
      Shipman & Loveridge, for plaintiffs in error.
    I. The declaration shows only a judgment obtained in the Circuit Court. Is that sufficient F Suppose that judgment should be reversed in this Court F In appeals from Justices a judgment in that Court authorizes a recovery upon the appeal bond at once.—Laws of 1867, p. 86, and 2 C. L., § 3866. But this act contains no such language. — See Kershaw v. Gartwright, 5 Burr., 2819.
    
    II. The bond was conditioned to “ pay all the rent due and. to become dud the complainant for the premises described in the complaint up to the time said complainant should obtain possession thereof? It does not appear that he ever obtained possession of the premises, but only a judgment for their restitution.
    III. The declaration alleges for one breach of the bond' that Delashman did not “pay the rent due or to become due ” the complainant. The rent by the act is to be paid “ up to the time the complainant shall obtain possession ” of the premises.- This of course may be before or after the' trial on the appeal and rendition of judgment of restitution, but the computation of the rent ceases at the time such possession is obtained, whether this be before or after the judgment. This contemplates and renders it a necessity that the breach should show how long the appellant continued in possession, and when the complainant obtained possession, as well as the amount of rent due. Nothing of this appears in the declaration; indeed it does not appear that any rent whatever was “ due ” or had “become due ” the complainant. This is bad pleading, according to all rules. The declaration should show the extent of the breach.—Lynch v. Murray, M How. Pr., 154; Juliand v. Burgott, 11 Johns., 6; Thomas v. Van Ness, 4 Wend., 549; People v. Russell, 4 Wend., 570; Nelson v. Bostwick, 5 Hill, 37, 41; McDonald v. McArthur, 7 How., 745; Cooney v. Winants, 19 Wend., 504; 17 Johns., 439.
    
    
      Ashley Pond, for .defendants in error.
   Christiancy, J.

Plaintiff below (defendant in error) brought his action of debt in the Circuit Court for the County of Branch, against the plaintiffs in error, upon a bond given by them, June 23, 1866, in the penal sum of $800, on an appeal by Delashman from the judgment of a Circuit Court Commissioner, giving restitution of certain premises and costs in a proceeding in the nature of forcible entry and detainer, in which plaintiff’s testator was complainant.

The bond was in the usual form, conditioned that, if •the said complainant “ shall obtain restitution .of the premises described in said complaint, upon such appeal, the said Delashman shall forthwith pay all the rent due or to become due to said complainant for said premises, up to the time said complainant shall obtain the possession, together with the costs of suit in prosecuting the said Complaint and obtaining restitution.”

The declaration set forth the bond, and, as required by the statute (Comp. L., Sec. 4509), undertook to assign a breach of the condition. The only breach alleged, however, is in these words: “Nevertheless the said plaintiff in fact says that, after the making of the said writing obligatory, to wit: on the 4th day of April, 1868, such proceedings were then and there had, in the said appeal of the said Delashman, in the Circuit -Court for the County of Branch, that by the consideration and judgment of the said Court, it was, amongst other things, ordered and adjudged that the said complainant in said suit have restitution of the premises described in the said complaint in said cause, and that the said complainant in the said cause do recover against* the said Delashman his costs and charges, by him about bis suit in that behalf expended, to be taxed, and that he have execution thereof; of all which the said defendant afterwards, to wit: on the day and year last aforesaid, had notice. And the said complainant further says that the said Delashman did not forthwith pay the rent due, or to become due, to said George A. Kellogg, complainant, for said premises, up to the time when the said complainant obtained restitution of the same, as aforesaid., together with the costs of suit in prosecuting said complaint and obtaining restitution of said premises, which were by the said Court awarded and adjudged against the said Delashman in the lifetime of the said George A. Kellogg, nor to the said plaintiff, as executor as aforesaid, since the death of the said Kellogg, by moans whereof,” etc.

By reference to the statute (Comp. L., Sec. 4998), and the bond, which is in exact compliance with it, it will be seen that the condition was to pay any rent, due or to become due, up to the time the complainant should “obtain possession of the premises,” with costs of suit in prosecuting said complaint and obtaining restitution of the premises. The declaration does not allege that any rent had become due, nor that complainant had obtained the possession.

The pleader evidently understood that the obtaining of the judgment for restitution and for costs, was the obtaining of restitution and possession referred to by the statute and the condition of the bond, and that no execution of the judgment or actual restitution of the possession was necessary to give a cause of action upon the bond. This is clear from the fact, that the delaration alleges the nonpayment of rent “up to the time when the said complainant obtained restitution of the same as aforesaid,” referring back to the judgment only, as giving a present right of action on the bond; thus, not only omitting to allege an actual restitution of possession, but leaving an implication that there had been 'none, and claiming that the cause of action accrued upon the rendition of the judgment.

It is clear, we think, from the language of the statute and of the bond, that no right of action accrues upon the bond until actual restitution and possession have been obtained. The judgment might be taken to this Court and reversed, in which case there would be no breach of the bond.

Such actual restitution or obtaining of the possession not being alleged, the declaration shows no cause of action, admitting the truth of all its allegations and of all the inferences warranted by the facts stated in it.

But, a trial having been had before the Court below, and a judgment obtained for the plaintiff, all defects are cured which would have been cured by a verdict. And it is insisted by defendant in error, that this declaration would be good after verdict, on the ground that we are to presume that all the facts were proved on the trial which were necessary to support the action. But the rule at common law certainly was not so broad as this. And we think our statute (Comp. L., § 4419, sub. 8) was intended to adopt the common-law rule. We so held in Kean v. Mitchell, 13 Mich., 207, 212, and 213.

The facts, we are to presume after verdict, to have been proved, depend upon the issue made by the pleadings. If a declaration in assumpsit does not formally or informally, or even argumentatively, allege any consideration whatever, but the issue is upon a mere nudum pactum, no consideration will be presumed, because none appears to have been claimed to exist; and the verdict will not cure this ■defect.

But if it contain any allegation from which the Court can see that the plaintiff claimed the existence of such consideration; in other words, if the consideration is informally, or only argumentatively, or inferentially alleged; then, if the defendant do not demur, but choose to go to trial upon the facts, a verdict against him properly authorizes the presumption that a consideration was proved on the trial; and so of any fact omitted to be stated in the declaration; if it be one which is fairly inferable from other facts stated in, or the case made by the declaration.

Thus Mr. Chitty lays it down (1 Chitty’s Pl., 7 Amer. ed., p. 713) that “the particular thing which is presumed to have been proved must always be such as can be implied from the allegations on the record, by fair and reasonable intendment.” The case of Kean v. Mitchell, ubi supra, explains both branches of the rule, though the case itself furnished an illustration of but one. The present case furnishes an example of both. Thus, it is clear from the allegations in the declaration, that the pleader did not intend to allege, or base his right of action upon, the actual restitution or obtaining of possession; and the declaration affirmatively shows, that he claimed that tbe judgment, of itself, constituted the restitution and obtaining of the possession required, as the basis of his action, or breach of the bond. This was the theory of the declaration, and it is quite as reasonable to infer that the Court acted upon this theory and found in favor of the plaintiff upon proof of the judgment alone, as that he required or received proof of the actual restitution or restoration of the possession, which, upon the whole theory of the declaration, was not even inferentially claimed to have occurred. To infer the fact would be to go outside of the declaration and to depart from the theory of the action presented by it. No inference, ¡therefore, can be warranted that this tact was proved. This omission is not, therefore, cured by the verdict nor by the trial before the Court and the'judgment.

■On the other hand the case furnishes an example of the proper application of the rule, in which a fact, omitted or only.argumentatively to be inferred from the declaration, is to be presumed, after verdict, to have been proved. The declaration omits to state that any rent had become due; but in alleging the breach, it asserts that the said Delashman “did not forthwith pay the rent due' or to become due/’ This may be said to be an argumentative statement that some rent was due, or at least an intimation that some rent was claimed to be due, and proof of this fact might therefore be presumed after verdict, had the declaration in other respects been sufficient.

The judgment, therefore, must be reversed with costs in both courts, but no new trial should be awarded,' as no cause of action is stated in the declaration.

But as the Circuit Court might, in its discretion, permit an amendment of the declaration, the record should be remitted to that Court to enable it to exercise that- discretion.

The other Justices concurred.  