Wallace v. Curtiss

Citations

• 36 Ill. 156

Syllabus

<p>1. Pleading—defects cured by pleading over. In an action of covenant upon a contraot for the sale of lumber which contained a condition that the lumber should be inspected by a person 1.o be selected by the parties, and the declaration contained no allegation that the lumber was inspected and measured by an inspector chosen by - the parties: -Held, that as it was made a ground.el' defense in the special plea, that no inspector was chosen as provided for in the contract, and the plaintiff having accepted the issue thus tendered by the plea, the omission in the declaration was thereby cured.</p> <p>2. Where under such a contract the parties had selected the inspector and he had acted as such in the delivery and acceptance of a portion of the lumber, no objection could be made to the inspector thus chosen on the delivery of the balance of the lumber except upon the ground of fraud. ,</p> <p>3. Practice—defects cwredly verdict. After verdict all defects of mere form, and many which would be fatal on general demurrer, are cured.</p> <p>4. Motions fob new trial, and in arrest — their difference. Motions for anew trial, and in arrest of judgment, are wholly different in their nature. The one is based upon the facts and on the rulings of the court, the other on the record. If the record be bad, no judgment will be entered on it, and a motion for a new trial would be unnecessary. Usually, the motion in arrest follows the overruling of a motion for a new trial. If the latter motion be allowed, the first is unnecessary.</p>