dissenting.
This case was brought to the District Court for tifie County of Ramsey from the judgment of a Justice of the Peace. The Jury in the District Court, after hearing the evidence and the charge of the Court, found for the plaintiff below a verdict of $4:0; for the reversal of which, this cause is brought to this Court on Error.
Hie Court charged the Jury, — “ That plaintiff must prove performance of the contract on his part; or that he was ready and willing to do so. Or that he was prevented *21by the defendant from such performance. That if plaintiff had failed in his declaration to aver an excuse for the nonperformance of the contract on his part, he might set up such excuse in evidence before the Jury. That if plaintiff had failed to assign as a breach of the covenant on the part of the defendant, the bad quality of the lumber furnished by defendant, he might introduce evidence to show the bad quality of such lumber. That this was an appeal from a Justice of the Peace — that declarations need not be filed in Justices’ Courts.
c' That if the evidence offered by plaintiff, would warrant a recovery, they would find for the plaintiff, without reference to the declaration.
“ That if plaintiff had failed to jprove material facts touching his right to recover, he mrvastfaAl. That his right could not be affected by the declaration now on file in this cause.”
The Judge, who presided in the Court below on the trial of this cause, felt a deep solicitude that a liberal practice should obtain on the trial of all causes before Justices of the Peace ; and that whenever such causes came to the District Court, the attainment of justice should be regarded as piwamoimt to a strict adherence to the rigid technicalities of Courts of Record. The finding of the Jury was fully sustained by the evidence offered on the trial below.
Is there error in the charge of the Court?
I think not.
The Supreme Court of the State of New York has uniformly held, that “ The same nicety and precision is not required in pleadings joined in a Justice’s Court, which are required in Courts of Record; and evidence will be received under pleadings joined in the former, which would not be received under pleadings joined in the latter. Mosier vs. Trumpbour, 5 Wendell, 274.
Technical nicety, or legal precision, is not required in pleadings in Justices’ Courts.
Whenever the Supreme Court can possibly infer that the merits have been fairly tried, they will not examine or test, by technical rules, the formality of the pleadings; and if it clear*22ly appear that the plaintiff had no right to recover, the Court will reverse a judgment, though a jury find a verdict for the-plaintiff. Stuart vs. Close, 1 Wendell, 434.
Special pleading in a Justice’s Court is to be discountenanced. Cline vs. Husted, 3 Cai. Reports, 275.
Many cases similar to those above cited, may be found in the Reports of the State of New York. These decisions were made under statutes less liberal than those governing similar proceedings in our own Territory. The Legislature of New York declared that the pleadings in the Common Pleas shall be the same which were had before the Justice — that they shall be liberally construed, without regard to established forms or technical rules of pleadings, and with a view to substantial justice between the parties.
The 6th Sec. of the 13th Art., Chap. 6, of the Laws of Minnesota, declares that the issue before the Justice shall be tried by the Court above, without other or further new declaration or pleadings, except in such cases as shall be otherwise directed by the Court.
And in the 4th, 7th and 8th Sections of Chap. 50, of the Laws of Minnesota, I find the following liberal enactments, which a/r& in full force and effect, and to which I invoke the attention of this Court.
“ After judgment rendered in any cause, any defect or imperfection in matter of form, contained in the record, pleadings, proofs, entries, returns, or other proceedings in such cause, may be rectified and amended by the Court in affirmance of the judgment, so that such judgment shall not be reversed or annulled; and any variance in the record from any process, pleadings, or proceedings had in such cause, shall be reformed and amended according to such original process, pleading, or proceeding.”
“ For the want of any allegation or averment, on account of which omission a special demurrer could have been maintained.”
“For omitting any allegation on account of any matter, without proving which, the Jury ought not to have given such verdict. For the want of right venue, if the cause was tried *23by a jury of the proper county. The omissions, imperfections, defects and variances, in the preceding section enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties on the trial, shall be supplied and amended by the Court into which such judgment shall be removed by "Writ of Error.”
In view of the liberal stand taken by the last Legislative Assembly of this Territory, and of the important reforms in our system of pleading and practice, which will be in force in a few weeks from this time; and of the manifest hardships which must result from a rigid and harsh construction of our statutes, I feel constrained to dissent from the opinion of the Court in this case.
This, I exceedingly regret. Tet when I reflect that Minnesota is now in its infancy; that its jurisprudence may be seriously affected by the strict construction and rigid adherence to ancient forms and technicalities recognized by this Court, and in view of the great legal reforms going on in Europe and America, I am admonished by evidence not to be mistaken, that the time has arrived in which laws are to be made and administered for the furtherance of substantial justice.
It is now too late for the defendant below, to object to the declaration. He has pleaded'to the merits, thereby waving such defects as might have been reached by demurrer. As the finding of the Jury is fully sustained by the evidence, it is the duty of this Court to affirm the judgment of the Court below.