Degraw v. . Elmore ( 1872 )

As to the main ground of reversal, there is no such point taken at the trial. There is not an intimation, from the beginning of the trial to the end, that there was any defect in the complaint, or that the wrong action was brought; not a word that the action should have been for the original demand due the plaintiff, in payment whereof the stock was taken. The point, as argued on the motion for a nonsuit, was that no fraud had been committed, because the plaintiff had parted with nothing; therefore the defendant was guilty of no fraud.

But the point was never presented to the mind of the judge at the trial that the action should have been upon the original debt. I am opposed to raising it here. Because:

First. The merits of the cause have been fully tried, without surprise to either party. No matter what the form of pleadings, the trial must always involve the same question of fraud in the sale of the stock to plaintiff.

If the complaint be simply for the original money due to plaintiff, the defendant sets up payment by this stock, and then the question arises on the trial whether the sale was fair or fraudulent. It is the only question in dispute, and that question has been fairly tried. The only benefit that could arise by the proposed amendment of the complaint, would be to have pleadings that should conceal the real matter in dispute.

Second. The complaint is sufficient as it is. It is within the plain meaning and spirit of the Code. It "contains a statement of the facts constituting the cause of action in ordinary language, in such manner as to enable a person of common understanding to know what is intended." (Code, § 141.)

The only objection is, that it alleges that the plaintiff paid the money for the stock, when in fact, the stock was received by plaintiff in payment of $9,000, money defendant confessedly owed plaintiff, a mistake in stating the precise consideration. The defendant understood the complaint; no pretence that he was misled by it.

This variance, between the pleading and the proof, the court had full authority to amend or to disregard under the Code.

This question of pleading has been a terror to suitors for many years before the Code. Legislatures have sought in vain to give relief, and now if this decision be sustained, I think our movement is backward much more than half a century.

England was our original, but she is far more liberal in disregarding variances in pleadings, both civil and criminal, than we are.

By our Code we have fully repudiated the practice of special pleading, and this decision seems to hold that we shall not have the benefit of the Code.

Probably in not one case in ten thousand has injustice been done from the ignorance of a suitor as to the matters to be tried.

But the cases of loss and damage to suitors by some defect of pleading have been innumerable.

There is no difficulty as to the question of imprisonment, as this court has recently held. The point was not raised or discussed by counsel, and I shall not review it. But clearly if the amendment be made in the complaint according to the proof, the defendant will not be imprisoned unless the law justifies it.

All concur, except PECKHAM, J., dissenting.

Judgment reversed.