— It appears to be conceded that the petition in this cause did not state a cause of action under section 5661, Revised Statutes. It was drawn with a view to a cause of action under that section as clearly appears from the prayer. Notwithstanding such was the intention of the pleader the objection, for the reason there was no cause of action stated, should have been overruled, if a valid common law action appears from the body of the petition, and we think it does so appear. “ While the petition is not good as a pleading-framed on the statute, it nevertheless, in our opinion, sets forth a good cause of action at common law; and where such is the case the cause should be proceeded with. * * * If we treat the petition as embracing merely a common law cause of action, it was not demurrable because it asked for double damages. The character of the petition is not always determined by the relief it prays for. The court may grant any relief consistent with the case and embraced within the issues.” Comings v. Ry. Co., 48 Mo. 512.
The judgment will be reversed and the cause remanded.
Philips, P. J., concurs; Hall, J., absent.