This is an action for the recovery of specific personal property, with damages for its detention.
From the allegations of the complaint, it appears that defendant came rightfully to the possession of the property, and there is no allegation of a demand upon defendant by plaintiff for its delivery, or of any refusal by defendant to deliver the property after demand made; and, for want of these specific allegations, the complaint is fatally defective, as it does not state facts sufficient to entitle the plaintiff to maintain an action.
Pleadings are to be most strictly construed against the party making them. Material allegations must be distinctly stated, and are not to be inferred from doubtful and obscure language. A defect of this character, when there is no direct evidence introduced by the plaintiff, without objection by the defendant, tending to establish a specific demand prior to suit commenced, is not cured by the verdict, and is available to defendant at any time.
Moreover, the verdict returned by the jury is informal, and not sufficiently definite and certain to serve as a basis for a judgment upon the matters in controversy, and the judgment, as entered by the Court thereon after the waiver by defendant of informality of the verdict, and consenting that a certain construction thereof should be taken as the verdict, is quite as irregular, uncertain and ineffectual as the verdict itself.
*510The judgment and order denying to defendant a new trial must, therefore, "be reversed and cause remanded, with leave to plaintiff to amend his complaint.
So ordered.
By Crockett, J.:In my opinion the judgment ought to be reversed :
jFirst—Because it is wholly unsupported by the evidence as to the quantity, -quality or value of pipe delivered to the defendant. The plaintiff is the only witness who testified on his behalf in that respect except Sehaffner; and the former does not profess to know how much the defendant got, as he was not present when it was delivered, and the latter only testified that the defendant said there was in all about one thousand nine hundred feet. If the verdict is to be construed as the defendant agreed it should be, as “ a finding for the plaintiff as to the title and right of possession of the property described in the complaint,” there is a total absence of proof as to how much of each hind of pipe was delivered; and as the several kinds were of different values, it was impossible for the jury, from any evidence in the cause, to have ascertained its value to have been $2,200.
Secondly—The verdict is too informal to support a judgment in this form of action; and the judgment itself is plainly erroneous in omitting to specify the property of which restitution is to be made. To permit these radical defects to be cured by a stipulation of the parties as to the construction to be placed upon the verdict, would introduce a laxity of practice which would lead to the most perplexing results. In its present form, the judgment for restitution could not be enforced by any process known to the law.
I therefore concur in reversing the judgment.