language used is to have a reasonable intendment and construction, and if capable of different meanings, that should be taken which will support the pleading, rather than one which will defeat it. Every allegation of a pleading should be considered in connection with the other allegations constituting the particular cause of action or defense; and general statements, which are evidently qualified by more particular subsequent averments, must be construed as thus qualified. Like any other sworn statement, a verified pleading must be construed so as to make all its parts, if possible, harmonize with each other. When the statement of facts constituting a cause of action will support either of two actions, and it is doubtful which the pleader intended, the demand for judgment or relief may in some cases be consulted, with a view of ascertaining which action was intended. And it is held that the explanations of the Code commissioners are entitled to much consideration in the construction of pleadings, though not binding as authority upon the court. In California, the headnotes to the chapters and titles in the Practice Act are entitled to more consideration in explaining the intention of the different sections, where the language is doubtful, than the title of the entire act.10 A well settled rule in the construction of a pleading is, that facts alleged must control, rather than the conclusions of the pleader; the fact will be regarded, and the legal conclusion disregarded.12

1 Cook v. Warren, 88 N. Y. 37, 40.

2 Gould v. Glass, 19 Barb. 179; Ogdensburgh Bank v. Van Rensselaer, 6 Hill, 240. And see Beach v. Bay State Co. 30 Barb. 433; 10 Abb. Pr. 71; 18 How. Pr. 335; Spear v. Downing, 12 Abb. Pr. 437; 22 How. Pr. 30; 34 Barb. 522.

3 Rathburn v. Railroad Co. 16 Neb. 441, 443; Woodbury v. Sackrider, 2 Abb. Pr. 402; Trustees etc. v. Odlin, 8 Ohio St. 293, 297; Hill v. Supervisors, 19 Ohio St. 621.

4 Allen v. Patterson, 7 N. Y. 476, 480: Morse v. Gilman, 16 Wis. 504. And see Olcott v. Carroll, 39 N. Y. 436; Quintard v. Newtown, 5 Robt. 72.

5 Hatch v. Peet, 23 Barb. 575; Allemany v. Petaluma, 38 Cal. 553; Farish v. Coon, 40 Cal. 33.

6 Page v. Boyd, 11 How. Pr. 415; Laub v. Buckmiller, 17 N. Y. 620. 7 Ryle v. Harrington, 14 How. Pr. 59; 4 Abb. Pr. 421. An allegation in a verified answer, in the present tense, strictly construed, does not avail the defendant as an allegation relating to the time of the transactions mentioned in the complaint: Coulson v. Whiting, 14 Abb. N. C. 60.

8 Dows v. Green, 3 How. Pr. 377; Spalding v. Spalding, 3 How. Pr. 297: Rodgers v. Rodgers, 11 Barb. 595. Compare Read v. Lambert, 10 Abb. Pr. N. S. 423; Conaughty v. Nichols, 42 N. Y. 83.

9 Wood v. Dillingham, 1 Handy, 29.

10 Barnes v. Jones, 51 Cal. 303.

11 Jones v. Phoenix Bank, 8 N. Y. 228.

12 Jones v. Phoenix Bank, 8 N. Y. 228; Schenck v. Naylor, 2 Duer,

675.

? 277. Words and phrases.-Words used in a pleading will usually be construed in their popular and ordinary sense. A restricted meaning should not be given to words which are clearly susceptible of a more liberal construction, unless the whole pleading shows that the language was used in its restricted sense, and especially when such restricted interpretation would exclude a defense on the merits.2 But where a word used in a pleading has two different meanings, one the result of judicial or statutory definition, the other of inaccurate popular use, the latter can only be adopted in construing the pleading where it plainly appears from other averments, or the whole tenor of the pleading, that such was the sense in which it was employed. To adopt an opposite rule would introduce doubt and ambiguity in the room of certainty and precision, and make a pleading lose its utility as a means of accurately evolving an issue to be tried. It is however held, that when a word used has two meanings in law, differing in degree merely, it will be understood in its larger sense, unless it appears to have been employed in its narrower sense.5 As it regards the construction which has been given to particular words and phrases, it is held that acceptance implies due acceptance; conversion means a wrongful

9

conversion; taking imports a tortious or unlawful taking; allegation of making a written instrument implies a delivery; allegation of a sale implies a perfected sale by delivery; 10 indorsed means lawfully indorsed,11 and includes delivery; 12 averment that possession had been taken implies a legal possession; 13 an entry on lands means a lawful entry; 14 allegation of over-payment is construed to mean an over-payment in money; 15 the word "signed," applied to a promissory note, is a sufficient averment that the note was made; 16 allegation that a judgment was recovered, and that it is a lien, implies the fact of docketing the judgment; 17 the word 66 as " in a pleading was construed "which," in order to express what was intended by the pleader; 18 the word "fulfilled" is equivalent to the word "performed," as used in a statute declaring that, in pleading, it must be alleged that conditions were performed; 19 the phrase "as hereinafter stated," when of doubtful application, should be so applied as to support the pleading; 20 at common law, the term "writing obligatory" in a pleading imports a sealed instrument; 21 in a recent case, it is held that whenever the word "obligation" is used in a statute as the name of a contract, an agreement in writing, sealed or unsealed, is referred to, and the term does not embrace or apply to oral contracts.22 Where a personal pronoun, designating a party to an action, immediately follows the names of both parties in a pleading, its antecedent is determined by the meaning intended; 23 thus, if it clearly appears that the pronoun is intended to refer to the plaintiff, though grammatically it refers to the defendant, the pleading will be read as intended." A reference in pleading to the "said premises," or to the "premises aforesaid," is neither uncertain nor defective, and is strictly correct.2 Although a complaint contains two counts, one upon an

25

agreed price, and the second upon a quantum meruit, both claims arising out of one transaction, the pleading does not necessarily violate the injunction against “unnecessary repetition." 26 In an action against a corporation for false representations, the proper form of allegation in the complaint is that such representations were made by the defendant, and not that they were made by the defendant "" 'by its officers and agents ";" and if the complaint is drawn in the latter form, the plaintiff will be required to make it more definite and certain by declaring specifically the particular officers or agents by whom he claims such representations were made.28

27

1 Woodbury v. Sackrider, 2 Abb. Pr. 402; Rathbun v. Railroad Co. 16 Neb. 441, 443; Walton v. Singleton, 7 Serg. & R. 449; Backus v. Richardson, 5 Johns. 476.

2 Close ". Nat. City Bank, 14 Abb. Pr. N. S. 326; 3 Jones & S. 261. And see Allen v. Patterson, 7 N. Y. 476.

3 Cook v. Warren, 88 N. Y. 37.

4 Cook v. Warren, 88 N. Y. 87.

5 Miller v. Miller, 33 Cal. 353.

6 Graham v. Machado, 6 Duer, 514; Bank of Lowville r. Edwards, 11 How. Pr. 216.

7 Young v. Cooper, 6 Ex. 259.

8 Childs v. Hart, 7 Barb. 370.

9 Keteltas v. Myers, 19 N. Y. 231; Prinale v. Caruthers, 15 N. Y. 425; Lafayette Ins. Co. v. Rogers, 30 Barb. 491.

10 Clark v. Meigs, 13 Abb. Pr. 467.

11 Mechanics' Bank v. Spring Valley Shot Co. 25 Barb, 419; Price v. McClave, 6 Duer, 544.

12 Bank of Lowville v. Edwards, 11 How. Pr. 2:3.

13 Butt v. Clark, 23 Ind. 548.

14 Turner v. McCarthy, 4 Smith, E. D. 247,

15 Mann v. Moorewood, 5 Sand. 557.

16 Price v. McClave, 6 Duer, 544.

17 Cady v. Allen, 22 Barb. 388.

18 Kelley v. Peterson, 9 Neb. 77.

19 Etna Ins. Co. v. Kittles, 81 Ind. 96.

20 Winans v. Insurance Co. 38 Wis. 42.

21 Clark v. Phillips, Hemp. 294.

Com

22 Exchange Bank v. Ford, 7 Colo. 314; 3 Pacif. L. Rep. 44. pare Crandall v. Bryan, 15 How. Pr. 56; Gage . Nat. Bank, 79 Ill, 62; Strong v. Wheaton, 38 Barb. 616; Gale v. Myers, 4 Houst. 546.

23 Steeple v. Downing, 60 Ind. 478.

24 Moore v. Beem, 83 Ind. 219.

25 Bastian v. Eau Claire, 56 Wis. 172.

26 Longprey v. Yates, 18 N. Y. Week. Dig. 355; 31 Hun, 432. See Vielie v. Insurance Co. 65 How. Pr. 1.

27 Schellens v. Equitable Life Ass. Soc. 18 N. Y. Week. Dig. 556; 32 Hun, 235.

28 Schellens v. Eq. L. Ass. Soc. 18 N. Y. Week. Dig. 556; 32 Hun, 235.

? 278. Abbreviations. Where abbreviations or initials of words are used in pleadings, if, when taken in connection with the remainder of the pleading and subject-matter, they can be clearly understood, and not be ambiguous, the same effect will be given to them as if the words were written in full. The descriptions of land in conveyances, surveys, assessments, etc., by initials, abbreviations, and figures, will be judicially noticed by the courts, without further explanation in the pleadings.2 So the court will judicially notice the abbreviation "adm'r" for the word "administrator," and give effect thereto as if written out. So of an abbreviation of the name of a month, as "Octb." for "October." And it is well settled, that a party may properly be described in a pleading by a known and accepted abbreviation of his Christian name.5 But not by the initials only of his Christian name."

1 Odd Fellows' Build. Assoc. v. Hogan, 28 Ark. 261. The abbreviation "vs." and the word versus are, in legal practice, so far English words as not to be contrary to a statute requiring all pleadings to be in the English language: Smith v. Butler, 25 N. H. 521. So the abbreviation "etc." is English, and will not vitiate a pleading on the ground that it is expressive of Latin words: Berry v. Osborn, 28 N. H. 279.

2 Kile v. Town of Yellowhead, 80 Ill. 208; Jordon etc. Assoc. v. Wagoner, 33 Ind. 50.

3 Moseley v. Mastin, 37 Ala. 216.

4 Kearns v. State, 3 Blackf. 334. It was held that the courts would notice that the abbreviation "Ind.," as applied to a place, meant Indiana: Burrough v. Wilson, 59 Ind. 536, 539. But see Ellis v. Park, 8 Tex. 205; Russell v. Martin, 15 Tex. 238.

5 Kemp v. McCormick, 1 Mont. 420; Weaver v. McElhenon, 13 Mo. 89.

6 Wiebbold'v. Hermann, 2 Mont. 609. And see Gardner v. McClure, 6 Minn. 250,