Jenkinson v. City of Vermillion

Citations

• 3 S.D. 238
• 52 N.W. 1066
• 1892 S.D. LEXIS 67

Syllabus

<p>1. An allegation in a complaint that a party “agreed” to do a certain thing must be taken to mean that he agreed in a valid and legal manner; for instance, where a writing would be necessary to constitute a valid agreement, such allegation will be taken to mean that he agreed in writing.</p> <p>2. When a complaint is defective in an amendable particular, like failure to allege a demand before action, and the defendant answers on the merits, and at the trial objects to plaintiff’s evidence on account of such defect in the complaint, such objection ought not to prevail against plaintiff’s offer to prove facts which would excuse such demand; it not appearing that defendant would be prejudiced thereby on account of surprise. Such evidence should be received, and the complaint amended to correspond with the facts proved.</p> <p>3. The practice of pleading to the merits, encouraging the opposite party to prepare for trial, and then at the trial interposing tile objection that the pleading is not sufficient to let in evidence, is one which the courts should discourage.</p> <p>(Syllabus by the Court.</p>