? 272. In general.-By the settled rule of the common law, a pleading is to be construed most strongly against the party pleading,' the rule being based upon the presumption that the pleader states his case as favorably for his side of the controversy as the facts will justify. But the Code system of pleading has entirely abrogated this common-law rule as to the construction of pleadings, or, at least, has so far modified the rule as now to require pleadings to be liberally construed, with a view to substantial justice between the parties. In accordance with the latter rule of construction, a complaint is sufficient which contains, in ordinary and concise language, allegations of such constitutive facts as will entitle the plaintiff to prove and maintain his case, and give the defendant opportunity to meet and controvert the alleged facts relied upon by the plaintiff. If the allegations of the pleading be so indefinite or uncertain that the precise nature of the charge is not apparent, the remedy of the opposite party is an application to the court to require the pleading to be made definite and certain. No motion being made to compel the pleading to be made more definite and certain, it will be held sufficient if the

necessary allegations are implied or imported in the facts alleged. But notwithstanding the liberal rule of construction now applied to pleadings, the principle still remains that the judgment to be rendered by any court must be secundum allegata et probata.8 The Code system does not rescind the rule that the allegation and the proof must correspond, nor the correlative principle, that the judgment must follow the pleadings.

And the rule of liberal construction as applied to pleadings is held to extend only to matters of form, and does not apply to the fundamental requisites of a cause of action.10 A pleading must be considered with reference to the general theory on which it proceeds, and if not good in that respect, it will not be good at all." Thus, a complaint for the recovery of a penalty must be good for that purpose, and not for some other, since to rule otherwise would put it in a plaintiff's power to make an elastic pleading, changeable to meet the exigencies of his case.12

1 Co. Litt. 303b; Dovaston v. Payne, 2 Black. H. 530; 2 Chit. Plead. 261; Lawson v. State, 10 Ark. 28; 50 Am. Dec. 238; Burrows v. Yount, 6 Blackf. 458; 39 Am. Dec. 439; Territory v. Ortiz, 1 New Mexico, 5, 15.

2 Dendy v. Powell, 3 Mees. & W. 442; Pearse v. Champneys, 3 Dowl. Pr. 276; Bartlett v. Prescott, 4 N. H. 500; Watriss v. Pierce, 36 N. H. 238; Winter v. Quarles, 43 Ala. 692; Hawes v. Ryder, 100 Mass. 216.

3 See Trustees etc. v. Odlin, 8 Ohio St. 297; Hazleton v. Union Bank, 32 Wis. 34.

4 Gray v. Coan, 23 Iowa, 343; Foster v. Elliott, 33 Iowa, 216; Clark v. Dillon, 97 N. Y. 373; Sullivan v. Dunphy, 4 Mont. 499; N. Y. Code Civ. Proc. 519; Cal. Code Civ. Proc. 452; Nev. Code 70; Ohio Rev. Stats. 5096; Malone v. Sherman, 17 Jones & S. 530; Southwick v. First Nat. Bank, 84 N. Y. 428; Prickhardt v. Robertson, 4 N. Y. Civ. Proc. 122; Gunn v. Madigan, 28 Wis. 158; Bushey v. Reynolds, 31 Ark. 657; Wilcox v. Hausch, 57 Cal. 139; Robinson v. Greenville, 42 Ohio St. 625; M'Curdy v. Baughman, Sup. Ct. Ohio, 1 N. E. Rep. 93. 5 Farnsworth v. Holderman, 3 Utah, 381; 3 West C. Rep. 342, And see 10, ante.

6 Olcott v. Carroll, 39 N. Y. 436; 247, ante.

7 White v. Spencer, 14 N. Y. 247; Clay v. Edgerton, 19 Ohio St. 549.

8 Tooker v. Arnoux, 76 N. Y 397; Neudecker v. Kohlberg, 81 N. Y. 296; 213, ante.

9 Exchange Bank v. Ford, 7 Colo. 314; 3 Pacif. L. Rep. 449.

10 Bunge v. Koop, 48 N. Y. 225; Spear v. Downing, 34 Barb. 522; Clark v. Dillon, 97 N. Y. 370.

11 Mescall v. Tully, 91 Ind. 96; West. Union Tel. Co. v. Young, 93 Ind. 118; Johnston v. Greist, 85 Ind. 503; State v. Beal, 88 Ind. 106; Neidefer v. Chastain, 71 Ind. 363; 36 Am. Rep. 198.

12 West. Union Tel. Co. v. Reed, 96 Ind. 195, 199.

2273. Presumptions.- Under the rule of liberal construction adopted by the Code system, every reasonable intendment and presumption is to be made in favor of a pleading.1 But much greater latitude of presumption to sustain a pleading is allowed where the objection of insufficiency is first made at the trial, and not by demurrer. Thus, if the question of the sufficiency of a complaint is raised for the first time, and only by an objection to the introduction of any evidence under it, courts will always construe its allegations very liberally, so as to sustain the complaint if it can be sustained. The court would be justified in construing a pleading more strictly upon a motion to strike out or render more definite, than upon a request to charge the jury that the pleading is to be disregarded.* But a pleading which reasonably imports the averment of a good cause of action is not to be held bad, even on demurrer, because its language is susceptible of a construction excluding any such cause; the court willadopt a rational construction rather than one which makes the complaint an absurdity. And on appeal, every reasonable presumption will be indulged by the court above, in aid of the action of the court below, in finding upon the sufficiency of a pleading. But the law will not assume in favor of a party the existence of any fact that he has not averred, or accept as facts any mere conclusions of the party himself." The law does not presume that a party's pleadings are less strong than the facts of the case will warrant.10

6

7

1 Morse v. Gilman, 16 Wis. 504; Black v. Drury, 24 Tex. 289; Quintard v. Newtown, 5 Robt. 72.

2 Bennett v. Judson, 21 N. Y. 238; Cady v. Allen, 22 Barb. 394; Hazleton v. Union Bank, 32 Wis. 34; White v. Spencer, 14 N. Y. 247. 3 Barkley v. State, 15 Kan. 99.

4 Barnsback v. Reiner, 8 Minn. 59, 66. And see Bank of Havana v. Magee, 20 N. Y. 355; Lounsbury v. Purdy, 18 N. Y. 515.

5 Olcott v. Carroll, 39 N. Y. 436.

6 Olcott v. Carroll, 39 N. Y. 436.

7 Evans v. Schafer, 88 Ind. 92.

8 Cruger v. Railroad Co. 12 N. Y. 190; State v. Central etc. Assoc. 14 Mo. App. 596, 597.

9 Malone v. Sherman, 17 Jones & S. 530. 10 Cruger v. Railroad Co. 12 N. Y. 190, 201.

? 274. Ambiguities. As it regards matters of substance, the old common-law rule that the pleading is to be construed most strongly against the pleader, is held to prevail. It is still the duty of a party to present a clear and unequivocal statement of his cause of action or defense, and when a material statement is susceptible of two meanings, the one most unfavorable to the pleader must be taken.2 All uncertainties and ambiguities arising on the face of the pleading are to be resolved against the pleader, since he has at all times the power, and it is his duty to make them plain. But the rule that a pleading must be taken most strongly against the pleader, where the language used is ambiguous, has no application where the pleader confesses that his pleading is ambiguous, and asks leave to amend.

1 Bates v. Rosekrans, 23 How. Pr. 98; 34 How. Pr. 626, n.; State v. Horner, 10 Mo. App. 307, 312.

2 Clark v. Dillon, 97 N. Y. 370.

3 Nation v. Cameron, 2 Dakota, 347, 362; Wright v. McCormick, 67 N. C. 27, 28; Territory v. Ortiz, 1 New Mexico, 5, 15; Triscony v. Orr, 49 Cal. 612, 617; Rogers v. Shannon, 52 Cal. 99, 107; Beach v. Bay State Co. 18 How. Pr. 335; 30 Barb. 433; Patteson v. Baker, 50 Barb. 432; 34 How. Pr. 180; Burke v. Thorne, 44 Barb. 363; State v. Beal, 88 Ind. 106.

4 Nevada etc. Co. v. Kidd, 28 Cal. 684. And see Moore ". Moore, 56 Cal. 89; Krause v. Sacramento, 48 Cal. 221; Tidball v. Holley, 48 Cal. 610.

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2275. Instances of construction unfavorable to pleader. Where allegations pertinent to two different causes of action, one ex contractu and the other ex delicto, are so blended together in the complaint that it is uncertain whether it is in tort or on contract, it is held that the complaint should be construed most unfavorably against the plaintiff. In such a case, it was held that all the allegations not material to the cause of action on contract might properly be stricken out on motion, as irrelevant. If it be doubtful whether the matter set up in an answer is intended merely to defeat the plaintiff's recovery, or to obtain affirmative relief, the construction should be most strongly against the defendant; 3 as where an answer is susceptible of being construed to contain either of two defenses, one of payment, and the other a counter-claim, the answer should be construed as setting up only the defense of payment, and not considered as containing a counter-claim, and therefore requiring a reply. If the place is material, and the pleading is ambiguous as to the place, the presumption should be against the party whose pleading it is.3

1 Ridder v. Whitlock, 12 How. Pr. 208.

2 Hunter v. Powell, 15 How. Pr. 221. See 218, ante.

3 Bates v. Rosekrans, 23 How. Pr. 98; 37 N. Y. 409.

4 Bates v. Rosekrans, 23 How. Pr. 98; 37 N. Y. 409; Burke v. Thorne, 44 Barb. 363. Compare Lancaster Manuf. Co. v. Colgate, 12 Ohio St. 355.

5 Beach v. Bay State Co. 18 How. Pr. 335; 30 Barb. 433; 10 Abb. Pr. 71.

? 276. General rules. Although pleadings are to be construed liberally, it is not meant by this that they shall be held to say what they do not.1 The rule is, that a pleading must be construed according to what it says, and not what the pleader intended." And language actually used in a pleading is to be construed according to its ordinary and common meaning.3 The