Fidelity Storage Corp. v. Maguire

delivered the opinion of the Court:

This action was brought by Anna E. J. Maguire-against the Fidelity Storage Corporation. The declaration is in two counts. The first claims $859.85 for goods sold and delivered; the second charges the delivery of certain goods to defendant in pledge, the payment of the indebtedness, demand for return of the goods, refusal, etc. A list of the goods is attached as a bill of particulars, stating the value of each item, making a total valuation of $859.85. The count concludes: “Wherefore the

plaintiff claims the return of said goods or the value thereof, namely $859.85, with interest thereon from the 31st day of March, 1909.”

Defendant filed three pleas of the general issue. It later withdrew its plea to the second count, and moved to strike out the said count, which motion was overruled. Trial by jury resulted in a verdict for the defendant on the first count, and for plaintiff on the second, for the sum of $250.

Defendant moved in arrest of judgment on several grounds, *233among which are that the second count was bad in substance and form as a count in detinue, neither alleging detention of chattels, nor claiming the return thereof, but claiming damages only. The verdict does not specify the chattels, or the separate value of each, but is for a sum of money in the aggregate. The. minutes of tlie court recite the following stipulations and agreements of the parties, in substance: On the hearing of the motion to strike out, it was agreed that the second count shall he considered and defended as an action of detinue, and plaintiff amended by striking out the last paragraph of the count, substituting therefor the following words: “Whereupon the plaintiff claims the return of said goods and chattels, or the value thereof as aforesaid.” On the trial it was further stipulated that the court should charge the jury that if they find that defendant had wrongfully detained the goods, they should return a money verdict in favor of plaintiff, “it having been shown by the evidence, and admitted by counsel for the defendant, to he impossible for the defendant to return any of the said goods and chattels.” Having recited these proceedings and stipulations, the court overruled the motion and (altered judgment on the verdict.

Defects, if any, in the allegations of the second count were entirely cured by the stipulation and amendment.

The informal character of the verdict was also cured by the stipulation which it followed.

There is no foundation for the errors assigned, and the judgment is affirmed, with costs. Affirmed.