
    Long-Bell Lumber Co. vs Thomas, et al.
    Opinion delivered June 3, 1897.
    
      Defective Pleading — How reached.
    
    If a complaint states a'cause of action though defectively, objection must be.taken by motion beforejtrial, and if not taken, it is waived, and all defects are cured by verdict. And in this case, Held, That a'Statement:that “ the defendant seized took and carried away goods and chattels of the plaintiffs, etc.,” sufficiently charges a taking of goods belonging to plaintiff to support a verdict.
    
      Verification of Pleadings— Waiver.
    
    After judgment, objection cannot be taken to the failure of plaintiff to verify his complaint. Objection must be taken by motion before trial.
    
      Verbal Contract — Evidence—Res Gesta.
    
    It is competent to establish a verbal contract by the testimony of parties who were present at the time, and their testimony as to what was said by the parties is not hearsay, but is a part of the res gesta.
    
      Evidence — Objection to Introduction Cannot be Made in Motion for New Trial.
    
    Evidence introduced without objection at the time cannot be objected to for the first time in the motion for a new trial.
    I Appeal from the United States Court for the Central trict.
    Chas. B. Stuart, Judge.
    I Action by J. J. Thomas and D. Thomas against the lg-Bell Lumber Company. • Judgment for plaintiff. De-llant appeals.
    Affirmed.
    
      On the 7th day of July, 1894, the appellees (plaintiffs! below) filed their complaint at law against the appellant! (defendant below) to recover the sum of $249.05, the value ofl a lot of lumber mentioned in said complaint, alleging thatl appellant on the 16th day of February, 1894, at the Secondl judicial division of- the Indian Territory, seized, took, and] carried away the lumber of the plaintiffs mentioned in the complaint; that the defendant, the Long-Bell Lumber Com! pany, converted and disposed of the lumber to its own use! to the damage of said plaintiffs in the sum of $800. Thd complaint was not verified at the time it was filed, and neve] has been verified, so far as the record discloses. The apl pellant filed its answer to said complaint on the 11th day ol September, 1894, denying the averments of the complaint al set out therein. The defendant below alleged that on thl 16th day of February, 1894, it was the owner of and in th| possession of the lumber mentioned in its said answer; ths the plaintiffs below had full and complete knowledge of thl ownership and possession of said lumber by this appellant On the 4th day of February, 1895, the cause was tried South McAlester by a jury, which rendered a verdicj against the appellant and in favor of the appellees for tbj sum of $249.05. Motion for new trial was filed and ove] ruled. Thereupon the court rendered judgment for the plan] tiffs below, to which the defendant belcfw excepted, ar brings the case here for review.
    
      W. B. Gowley for appellant.
    1. The complaint in conversion must show that I the time of taking and conversion, they were the owners c| or in possession of the lumber seized, or if not in possessiol was entitled to the immediate possession of the propertl Sayer vs Robertson, 28 Pac. 456; 2 Estee PI. & Pr. §209¡| Boone on Code Pleading 637; Maxwell on Code Pleadii 637; Chitty on Pleading 167; Bishop Non-Contract Lai 596-408 ; Cruger vs Railroad Co., 12 N. Y. 190-201; Wilson rs Fuller, 8 Kan. 191; Hoisington vs Armstrong, 22 Kan. 10; Kennett vs Peters, 37 Pac. 1000; Kehr, et al, vs Hall, 0 N. E. 281; Rosenthal v. McMann, 29 Pac. 121.
    2. The complaint in conversion must allege either |hat the property was wrongfully converted, or that the ¡laintiff was wrongfully deprived of its possession. Mc-)onald vs Mangold, 1 Mo. App. 386. If the complaint fails allege some material averment, it is error for the court permit the introduction of testimony under the complaint. rilhite vs Williams, 41 Kan. 291; Moody vs Arthur, 16 Kan. 54; Rush vs Newman, 7 C. C, A. 139; C. R. I. & P. Ry. Co. Woodworth, 1 Ind. Ter. 20, and cases cited.
    
      E. J. Fannin for appellee.
    1. The complaint alleges in express terms the seiz|e, taking and carrying away of the goods and chatties of le plaintiffs, by defendent, and converting them, etc. “Of le plaintiffs” is a sufficient allegation of title. Bliss on |)de Pleading, §230; Dambmann vs White, 48 Cal. 439. The prds “wrongfully seized” are not indispensable. Maxwell
    Code Pleading, 325. It is not necessary to allege or low that the taking was forcible. L. R. & E. S. R. Co. vs rer 35 Ark. 360; Hardy vs Cien denning, 25 Ark. 437; Win-[■ingham vs Lafoy, 7 Cowen 736. The common law rule istruing the pleading adversely to the pleader has been Irogated by the Code Practice. Rushey, et al, vs Rey-|ds, 31 Ark. 657. .
    2. If any defect exists as to the sufficiency of the iplaint, it is cured by the verdict. Moody vs Arthur, 16 l. 419; Glaspie vs Keator, 56 Fed. 203, 211; Murray vs Iredith, 25 Ark., 164; G. C. & S. F. R. R. Co. vs Wash-}ton, 59 Fed. 347; Rush vs Newman 58 Fed. 158. If any part of the complaint states a cause of action, the complaintl is good. Weed vs U. S. 65 Fed. 399. If the whole pleading| be defective, and shows no cause of action or defense, the defect cannot be reached by motion, but by general demur-j rer only. Benedict vs Drake, 6 How. Prac. Rts. 352; Wad^ vs Briggs, 24 Ark. 569.
    3. The testimony of witnesses to the contract betweexj appellee and McCool was admissible as declarations againsj interest. 1 Greenleaf on Ev. (14th Ed.) §147; Bartlett v| Patton, 5 L. R. A. 523.
   Springer, C. J.

(afte,r stating the facts.) There arl but three errors assigned in this case which require coni siderátion: First, that the court below erred in permit fcinj the plaintiffs below (the appellees in this court) to introduc any testimony, on the ground that the complaint did nc state a cause of action; second, in permitting the plaintiff introduce evidence in support of the complaint, when tbl same had not been verified as required by law; -third, in al lowing the statements of E. McCool, deceased, to be prove| by witnesses.

The first error assigned is based upon . the contentic| of the appellant that the complaint did not state a cause ■ action. The complaint is as follows, omitting the form I parts, and description'of the property: • “That the said dl fendant, on the 16th day of February, 1894, at the Seeoil judicial division of the Indian Territory, seized, took, ail carried away the following goods and chattels (descriptiJ of various kinds of lumber omitted) of the plaintiffs, of t| value of $8.50 per thousand feet, and of the total value $249.05, then and there being found, and converted and d| posed of same to its own use, to the damage of said plaintl in the sum of $300. □ Wherefore the plaintiff’s pray judgmel against the said defendant for the said sum of $300, thl damages as aforesaid sustained, and for all other costs hi out and expended, and for all further and proper relief.” The counsel for appellant contends that the complaint fails bo state that the plaintiffs were the owners of or in the possession of the proj)erty mentioned therein, and that there is no allegation in the complaint that the defendant “wrongfully” seized said lumber, or that it wrongfully converted or disposed of the same to its own use. Section 5026 of Mans-ield’s Digest of the Laws of Arkansas points out what the j;omplaint must contain. The third paragraph of that section Is as follows: “A statement in ordinary and concise language, without repetition of the facts, constituting the plain-iff’s cause of actiou.” It must be conceded in this case that ¡he appellees did not use any unnecessary verbiage; that the [.omplaint was in concise language without repetition of the acts. Whether it was too concise to state a cause of action r not is the question presented to this court. Section 5028 |f Mansfield’s Digest points out such defects in the com-laint as may be taken advantage of by demurrer. The fifth ecification is: ‘ ‘That the complaint does not state facts fficient to constitute a cause of action.” Section 5031 of ansfield’s Digest provides that when any of the matters umerated in the foregoing section do not appear upon the ee of the complaint the objection may be taken by answer. |If no such objection is taken by demurrer or answer, the fendant shall be deemed to have waived the same, except [ily the objection to the jurisdiction of the court over the bject-matter of the action, and the objection that the com-aint does not state facts sufficient to constitute a cause of tion.” The objection that the complaint does not state cts sufficient to constitute a cause of action may be taken vantage of for the first time in the Court of Appeals. Railway Co. vs Woodworth (decided by this court Feb. 15, 96) 1 Ind. Ter. 20. As stated in that case, the plain and .mistakable meaning of this statutory provision is that the fendant cannot waive, by failure to demur or answer, the objection that the complaint does not state facts sufficient to constitute a cause of action. The statute is based upon the well-recognized principle that where there is no cause' oi action stated in the complaint there can be no valid judg ment. Id.; Eliott, App. Proc. 398. In the case of Railway Co. vs Woodworth, supra, decided by this court, the declara tion entirely omitted an averment which was essential to th« plaintiffs cause of action, and in that case this court hele that such a defect could not be cured by a verdict. In tha case the distinction between defects arising from the absenc<j of the essential averments and averments defectively pleadj ed was stated as follows: “The complaint in the case atba (Railway Co. v. Woodworth) does not present the case oi essential averments inaccurately or defectively stated, b one where there is a total omission of a fact essential to thj appellee’s cause of action. ” In the case at bar the con plaint alleges that the property was the plaintiffs’, and tha the defendant “seized, took, and carried away” the same “and converted and disposed of same to its own use.” Th.es are essential averments, inaccurately and defectively stated If the appellant had desired a more accurate statement d the facts, it could have moved the court to require the plan tiffs below to make their complaint more definite and certaii! as provided in section 5082 of Mansfield’s Digest. The e. sential averments in the complaint were that the properij belonged to the plaintiffs, and that the defendant seize-took, and carried away, and converted it to its own use. the appellant had deemed these averments to be’inaccurate'! or defectively stated, it could have required the complail to be amended, so that the defect which it points out couj have been removed.

Complaint failing to «tafo causo of of action. Objection.

Defective m?wcoimect-

Section 5083 of Mansfield’s Digest is as follows : ‘ ‘Ti court must at every stage of any action, disregard any errj or defect in the proceedings, which does not affect the riglj of the adverse party ; and no judgment shall be reversed affected by reason of such error or defect. ” The appellant in this case is not prejudiced by the failure of the plaintiffs to allege that it wrongfully seized the lumber in question, nor are its substantial rights affected by the allegation that “the property was the plaintiffs’,” instead of more specific allegations that the plaintiffs were the owners of and entitled to the possession of the property. That the appellant seized and converted the appellees’ property to its own use is averred in the complaint. The averment is in ordinary and concise language, as required by the statute, and no substantial right of the appellant is affected by the failure to use more definite and certain language. The 'complaint in this case states the facts which are essential to the ap-pellees’ cause of action, and, if such averments are inaccurate and defective, as contended for by appellant’s counsel, such inaccuracy or defect was cured by the verdict.

^^int verdict!-7

verification of complaint,

The second error assigned is to the effect that the ;omplaint was not verified. Section 5086 of Mansfield’s Digest is as follows : ‘ ‘Where complaints are filed without rerification, as required by section 5055, the action shall not I that account be dismissed, if the verification be made on before the calling of the action for trial.” It seems that ten the case was called for trial the appellant objected to } introduction of any evidence in support of the com-lint, on the ground that it had not been verified. Thereon the attorneys for appellees asked permission of the art to verify the complaint instanter, which permission a court granted. -Appellant objected to the verification of 3 complaint on the ground that it ought to have been ver-3d before going to trial. It seems that the trial proceed-to conclusion of the case, and the record does not disclose íether the complaint was thereafter verified or not. Sec-m 5087 of Mansfield’s Digest is as follows : “No objection all be taken after judgment to any pleading for the man-r of, or defect in the verification. ” Referring again to the section of the statute which provides that no judgment shalll be reversed or affected by reason of an error or defect whichl does not affect the substantial rights of the adverse party.! we are of opinion that the failure to verify the complaint did not prejudice appellant’s rights, and is, therefore, noil reversible error. The facts necessary to support appellees! case before the jury were established by the evidence, and! the verdict of the jury was in no way influenced by the fail] ure to verify the complaint. After judgment, no objectior can be taken on this account.

Objection to want of verification.

Verbal contract. Evidence to establish.

Verbal Contract-Testimony. lies Gesta.

The third assignment of error was to the effect thai the court erred in allowing the statements of E. McCool] deceased, to be proven by the witnesses Boyt and Matthews] Both parties to the case at bar claimed title to the lumber irl controversy from McCool, who died before the suit wal begun. Appellees claimed title under a verbal contrae] made with McCool in October, 1893, while appellant claimeci title to the lumber under a written contract made witll McCool in November, 1893. It was, therefore, necessary fo| appellees to establish the verbal contract with McCool bj the statements of living witnesses in reference thereto! which testimony was. competent. McCool died about thre] months after entering into the contract with appellees, am] about a week before the lumber in controversy was taken b! the appellant. Unless appellees could establish the contrac] with McCool, by witnesses who heard the contract entere] into between appellees and McCool, they could not havl maintained their action. To hold that verbal contracts all fecting the rights of property could not be proven if one the parties to the contract should die, would impair an! destroy all commercial transactions not evidenced by writtel obligations. Whether appellees entered into a verbal contrae! with McCool or not was a question of fact, and the best ev] dence of such fact would be the statements made by the pari

/ ies at the time the contract was made. Such statements are a part of the res gestae, and are in no sense hearsay evidence.

Admission of evidence. Exception too late.

There was a fourth assignment of error on the part of the appellant to the effect that the court erred in permitting certain tickets offered in evidence by the appellees to be read in evidence to the jury. The record discloses the fact thit no objection was made at the time these tickets were admitted in evidence. It is therefore- too late to assign error upon their admission at this time, and it was also too late after the trial to take exceptions to the admission of this evidence in the motion for a new trial. Finding no reversible error 'in the record, the j udgment of the court below is affirmed.

Kilgore and Clayton, JJ., concur.  