The defendants in error brought assumpsit in the court below against Stange, and, in their declaration, joined with the common counts a special count upon an alleged contract in writing between the parties for the sale and delivery of a quantity of stone to the plaintiff in error.
The case was tried on the general issue before the court without a jury, and the defendants in error obtained a general judgment for §1,923.61
Stange now biings error, and alleges that the special count in the declaration was fatally defective for want of certainty, and that the facts actually set forth in it were not such as to constitute a cause of action. Upon inspection, the count complained of, appears to have been quite *409inartificially drawn, but we think the objections brought against it can not be maintained. That a special demurrer in the court below might have been interposed with success, is altogether probable, but the points submitted in the present posture of the case present very different questions.
If the declaration had been demurred to, the plaintiffs might have amended and in that way have cured the deficiencies and imperfections in the pleading.
However, the plaintiff in error did not think proper to raise the objections in the court below, but he joined an issue of fact upon the declaration as it stood, and went to trial upon it, and was defeated.
In such cases it is the policy of the law to sustain the judgment against all formal errors and defects in the record, and to presume that all inaccuracies and defects in the plaintiff’s statement of his cause of action were supplied by proof upon the trial, if in substance a cause of action was really stated.
It is claimed, on the part of the plaintiff in error, that by the agreement, as stated in the special count, the defendants in error were to deliver, and the plaintiff in error to-accept and pay for, fifteen thousand cubic feet of stone, “more or less,”.and that such an engagement would be void for uncertainty.
Without pausing to consider whether this would be so or not, if the agreement as set forth was open to the construction put upon it, we are satisfied that the contract, as it stands in the count, required the defendants in error to deliver, and the plaintiff in error to accept and pay for, at least six thousand cubic feet, and while it does not appear that more were delivered, it is evident that the court below must have found that quantity at least to have been delivered.
Upon no other supposition could the finding be supported unléss it should be claimed that the judgment was based upon the common counts. But that ground could *410not be taken, as it would admit that no recovery was had on the only count alleged to bes-'¿nvalid; and such admission would remove the only reason for the rule which makes a general verdict bad if a single count in the declaration is fatally erroneous.
By the contract, as set forth, the defendants in'error agreed to deliver fifteen thousand cubic feet, more or less, for fifty-five cents per cubic foot, at the rate of six thousand cubic feet each and every month until the whole amount should be delivered, and the plaintiff in error agreed to accept accordingly. This constituted a certain agreement for at least six thousand feet, and it is necessarily to be presumed as already .intimated that the delivery of that quantity according to the agreement was proved upon the trial.
It is further urged by the plaintiff in error that it appears from the special count that he was to pay in the same manner as he could get payments under a certain contract for work to be done on the new City Hall, in Detroit, and that the omission to set that contract forth in terms, or according to its legal effect was a fatal defect.
On referring to the count it is seen that the contract between the parties as therein stated, expressly provided that the plaintiff in error should pay at the rate of fifty-five cents per cubic foot, for all the stone delivered pursuant to the contract; that the two first loads should be fully paid for upon delivery, and that the amount thereafter delivered in any month should be paid for at the end of the same month.
We think the manner of payment as thus set forth, was sufficiently explicit, and that the passage added by the pleader, and commented on by the counsel for the plaintiff in error, was in no wise essential to substantiate the pleading, and was irrelevant, and immaterial.
*411It was mere surplusage, and might have been rejected. It can therefore furnish no foundation for an allegation of error.
The remaining objections to the record, which were pressed upon our attention, stand upon the same ground, and must be similarly answered. — Harris v. Phillips, 4 E. L. and Eq. 344.
We have thus noticed somewhat at length the objections made to the record in this case, and have found them untenable when tested by the principles of the common law; but we think they are likewise untenable if encountered by the provisions of the statute.— Comp- L. §§ 44-19,
The judgment must he affirmed, with costs.
The other Justices concurred.