(dissenting).—With the greatest respect for the views expressed in the opinion of the court in this cause, they yet seem to me to fall short of being convincing. The point on which the result is found to turn is one of pleading. It is ruled by the majority of the court that a general allegation of fraud is not sufficient in such a case as this, to support a finding, after a trial of that issue and a decree thereon in the circuit court. This ruling necessarily involves the general construction to be placed upon our statute of amendments (R, S. 1879, ch. 59, art. 6), and seems to me of such importance as justifies a brief expression of the reasons for my dissent from the conclusion reached by my brethren.
It is declared by section 3569 of that chapter (R. S. 1879) that “the court shall, in every stage of the action, *68disregard, any error or defect in the pleadings or pro-, ceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”
Now it seems to me that, though a general allegation of fraud in a petition might properly be challenged, by timely motion, as too vague to inform the adverse party of the precise nature of the case to be met, it ought to be regarded by the courts as sufficient, after verdict, where the adverse party has put it in issue and has treated it at the trial as amply informative for him. In the case before us the defendants (now making the objection in question here) submitted evidence on the issue of fraud and the court at their instance gave several instructions presenting various phases of the facts to the jury with special reference to that issue. It appears to me that, in such state of the record, the generality of the allegation of fraud, assuming it defective, could not have materially affected “the substantial rights” of the defendants upon the merits, and should, therefore, be viewed now as sufficient for the purposes of this case. While it is true* as a general proposition, that the pleadings must definitely outline the issues in each case, it is also undeniable that, in many instances, the action of the parties in the conduct of a civil action in the trial court may supply omissions or cure defects of that nature. Thus in a recent case where the circuit court during a trial gave leave to amend the petition, introducing a new party plaintiff, but the amendment was not actually made, though the trial proceeded as if it had been, this court held that there was no error in the omission and construed the record as though the amendment had been formerly filed. Merrill v. City of St. Louis (1884), 83 Mo. 244. A like view was expressed in Young v. Glascock (1883), 79 Mo. 574, involving the same principle applied in the Merrill case.
It has also been repeatedly ruled by this court that where a reply is necessary, to put in issue affirmative *69new matter in the answer, its omission will not be ground of reversal where the parties have tried the case as though a reply were on file, ignoring its absence Howell v. Reynolds Co. (1872), 51 Mo. 154; Smith v. City of St. Joseph (1870), 45 Mo. 449; Heath v. Goslin (1883), 80 Mo. 310.
We further find that in actions at law, as distinguished from suits involving’ equitable rights, it has been frequently declared that a general allegation of fraud is sufficient to support a verdict. Montgomery v. Tipton (1824), 1 Mo. 446; Pemberton v. Staples (1839), 6 Mo. 59; Edgell v. Sigerson (1855), 20 Mo. 495; Fox v. Webster (1870), 46 Mo. 181.
It seems to me that that rule should be applicable to proceedings such as that now before us, at least when the issue of fraud has been met and submitted in the trial court by the party who, on appeal, seeks to assert that it was not raised by a sufficiently specific allegation of facts in the first instance. The case appears to me to fall within the control of the principle that parties are bound on appeal by the positions taken by them in the trial court.
Therefore my dissent is respectfully entered to the conclusion announced by my able associates.