The whole question on this appeal, relates to the sufficiency of the complaint, in stating facts sufficient to constitute a cause of action. There was no demurrer or other objection interposed to the complaint, and the objections to its sufficiency are urged here for the first time. The cause was tried by the court, and the findings are full and explicit upon all the material issues, and no objections are made thereto. Hence, it follows that all errors and omissions which are cured by verdict are waived. * It is objected that the complaint fails to allege that the contract fixed the time for the commencement and completion of the work, which it is claimed, is fatal to the validity of the complaint. The contracts were awarded August 13, 1888, and entered into August 25, 1888,-less than 15 days after the award. The complaint does not, in express terms, aver the time specified in the contract for the commencement and completion of the work under the contract. It avers that all the work ordered to be done under the resolution "was and has been completed pursuant to said contracts and said plans and specifications, within the time given by said commissioner of streets in said contracts, with materials complying with the specifications, under the direc tion and to the satisfaction of said commissioner of streets, and was and has been duly accepted by him." Beyond this quotation, I find no averment in the complaint referring to the matter under consideration. That the omission in the complaint would have been fatal, in the face of a special demurrer, is settled by the cases quoted supra, and by many others to which we might refer. The question, however, is, can appellant, after verdict, raise the question here for the first time? Chitty, in his work on Pleading (at page 705 of volume 1) lays down the rule as follows: "The second mode by which defects in pleading may be, in some cases, aided, is by intendment after verdict. The doctrine upon this subject is founded upon the common law, and is independent of any statutory enactments. The general principle upon which it depends appears to be that 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 verdict. "The expression, 'cured by verdict,' signifies that the court will, after a verdict, presume or intend that the particular thing which appears to be defectively or imperfectly stated or omitted in the pleadings was duly proven at the trial.” The difficulty experienced, in many cases of this character, is to determine whether or not the omitted fact or facts were proven at the trial. In the present instance, we are met with no difficulty of this character. The cause having been tried by the court, and facts found, it appears affirmatively by the record that what was omitted in the complaint was supplied without objection at the trial. The defective statement of the complaint, wherein it was averred that the work and improvements were completed pursuant to the contracts, "within the time given by said. commissioner of streets in said contracts," was but an inferential statement that the contracts specified the time within which the work was to be done, but was, in the language of the common law, an allegation that is "holpen by verdict." The defendant having gone to trial upon such imperfect statement without objection, and it having been cured by the findings, which we must suppose were supported by testimony, he cannot now successfully raise the question of the sufficiency of the complaint in that respect. Table of Cases Page Abbott v. Meinken (1900) 48 N. Y. App. Div. 109... 696 478 341 332 Astin v. Chicago, Milwaukee & St. Paul Ry. Co. (1910) 143 Wis. 477.. 239 Babeock v. Maxwell (1898) 21 Mont. 507.... 476 Baldwin v. City of Aberdeen (1909) 23 S. D. 636. Beakey v. Vander Meerschen (1908) 78 Kan. 538. 645 Bean v. Lamprey (1901) 82 Minn. 320.. 410 Belden v. Wilkinson (1899) 44 N. Y. App. Div. 420. 591 Blair v. Wilkeson Coal & Coke Co. (1909) 54 Wash. 334. 670 Blemel v. Shattuck (1892) 133 Ind. 498 657 Board of Commissioners v. Am. Loan & Trust Co. (1899) 75 Minn. 489.. 689 Bowen v. Emerson (1869) 3 Ore. 452. 264 Bowers v. Good (1909) 52 Wash. 384. 704 Box v. Chicago, Rock Island & Pacific Ry Co. (1899) 107 Iowa, 660.. Browning, King & Co. v. Terwiliger (1911) 144 N. Y. App. Div. 516. 369 741 Calif. Safe Dep. & Trust Co. v. Sierra Valleys Ry. Co. (1910) 158 Cal. 690 582 Chicago & Erie Rd. Co. v. Lain (1908) 170 Ind. 84. 270 Church v. Hendrie etc. Supply Co. (1910) 47 Colo. 544. 385 Cincinnati Traction Co. v. Forrest (1905) 73 Ohio St. 1. 417 Clark v. Oregon Short Line R. R. Co. (1908) 38 Mont. 177. 721 148 Coddington v. Canaday (1901) 157 Ind. 243.. 595 Colorado Springs Co. v. Wight (1908) 44 Colo. 179.. 281 Columbia Nat. Bank v. Western Iron & Steel Co. (1896) 14 Wash. 162 427 Commonwealth Co. v. Nunn (1902) 17 Colo. App. 117.. 672 Conrad Nat. Bank v: Great Nor. Ry. Co. (1900) 24 Mont. 178. 266 Considerant v. Brisbane (1860) 22 N. Y、 389. 61 Cooper v. Am. Cent. Ins. Co. (1909) 139 Mo. App. 570.. 378 Cornell v. Haight (1910) 87 Neb. 508... 671 Page Cousar v. Heath, Witherspoon & Co. (1908) 80 S. C. 466. Darknell v. Coeur D'Alene & St. Joe Transp. Co. (1910) 18 Idaho, 61. 676 Dewey v. Hoag (1853) 15 Barb. (N. Y.) 365.. Disbrow v. Creamery Package Mfg. Co. (1908) 104 Minn. 17.. Downey v. Colo. Fuel & Iron Co. (1910) 48 Colo. 27... Dudley v. Duval (1902) 29 Wash. 528. 541 139 560 690 Duff v. Willamette Steel Works (1904) 45 Ore. 479. East v. Peden (1886) 108 Ind. 92.. East St. Louis Ice Co. v. Kuhlmann (1911) 238 Mo. 685. Emison v. Owyhee Ditch Co. (1900) 37 Óre. 577.. Enos v. Sanger (1897) 96 Wis. 150.... Ewing v. Vernon County (1908) 216 Mo. 681. Fegelson v. Niagara Ins. Co. (1905) 94 Minn. 486.... First Nat. Bank v. Lang (1905) 94 Minn. 261. 399 537 589 337 56 656 224 99 664 First Nat. Bank of Cadiz v. Beebe (1900) 62 Ohio St. 41. 163 Fidelity & Deposit Co. v. Parkinson (1903) 68 Neb. 319. 552 Fitger Brewing Co. v. Am. Bonding Co. (1911) 115 Minn. 78. 584 718 Fledderman v. St. Louis Transit Co. (1908) 134 Mo. App. 199. Fulton County Gas & Elec. Co. v. Hudson River Teleph. Co. (1911) 200 577 Gardner. v. Samuels (1897) 116 Cal. 84.. 610 Gates v. Paul (1903) 117 Wis. 170... 708 General Electric Co. v. Williams (1898) 123 N. C. 51. Grimm v. Town of Washburn (1898) 100 Wis. 229. Hartford Life & Annuity Ins. Co. v. Cummings (1897) 50 Neb. 236.. 157 450 Harvey v. Southern Pacific Co. (1905) 46 Ore. 505. 236 Hasberg v. Moses (1903) 81 N. Y. App. Div. 199. 334 Hawk v. Thorn (1869) 54 Barb. (N. Y.) 164. 198 Hayward v. Goldsbury (1884) 63 Iowa, 436. 667 Heaton v. Packer (1909) 131 N. Y. App. Div. 812. 565 Heiden v. Atlantic Coast Line R. R. Co. (1909) 84 S. C. 117. 699 Helena Nat. Bank v. Rocky Mountain Teleg. Co. (1897) 20 Mont. 379.. 306 Helm & Son v. Briley (1906) 17 Okla. 314. 548 Henderson v. Johns (1889) 13 Colo. 280 549 Hill Brick & Tile Co. v. Gibson (1908) 43 Colo. 104. 636 Home Ins. Co. v. Overturf (1904) 35 Ind. App. 361. 701 Page Howard Iron Works v. Buffalo Elevating Co. (1903) 176 N. Y. 1. 500 Howe v. Coates (1903) 90 Minn. 508... 618 Jacoby v. James (1910) 136 N. Y. App. Div. 431. Jeffries v. Fraternal Barkers' Reserve Society (1907) 135 Iowa, 284.. 556 Johnson v. State Bank of Seneca (1898) 59 Kan. 250... 639 Jones v. City of Caldwell (1911) 20 Idaho, 5. 368 Jones v. El Reno Mill & Elevator Co. (1910) 26 Okla. 796. Kidder v. Port Henry Iron Ore Co. (1911) 201 N. Y. 445. Kurtz v. Ogden Canyon Sanitarium Co. (1910) 37 Utah, 313. 617 Lassiter v. Roper (1894) 114 N. C. 17. 319 Leary v. Moran (1886) 106 Ind. 560.. 380 Le Breton v. Stanley Contracting Co. (1911) 15 Cal. App. 429. 677 Lent v. New York & Massachusetts Ry. Co. (1892) 130 N. Y. 504.. 260 122 Libby v. St. Louis, Iron Mt. & So. Ry. Co. (1909) 137 Mo. App. 276. 420 Logansport v. Kihm (1902) 159 Ind. 68... 278 Long v. Dufur (1911) 58 Ore. 162.. 318 Los Angeles Ry. Co. v. Davis (1905) 146 Cal. 179. 597 Loustalot v. Calkins (1898) 120 Cal. 688.. 115 Loveland v. Jenkins-Boys Co. (1908) 49 Wash. 369. 442 Lux & Talbot Stone Co. v. Donaldson (1903) 162 Ind. 481. McKenzie v. L'Amoureux (1851) 11 Barb. (N. Y.) 516. 101 McKim v. District Court (1910) 33 Nev. 44.. 459 Malott v. Sample (1904) 164 Ind. 643.. 328 Mallinckrodt Chemical Works v. Nemnich (1902) 169 Mo. 388. 566 Manley v. Park (1904) 68 Kan. 400... 36 Merchants' Nat. Bank v. Barlow (1900) 79 Minn. 234. 647 Merrill v. Suffa (1908) 42 Colo. 195... 220 Millard v. Miller (1907) 39 Colo. 103.. 117 Milwaukee v. U. S. Fidelity & Guaranty Co. (1911) 144 Wis. 603. Multnomah County v. Williamette Towing Co. (1907) 49 Ore. 204. Nat. Fire Ins. Co. v. Eastern Bldg. & Loan Assn. (1902) 63 Neb. 698.. |