Warfield

Plaintiff commenced an action against defendants by filing a complaint which, after the formal parts thereof, contained the following allegations:

Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against defendants. The court made an order sustaining the demurrer, and it was further ordered that the plaintiff be and he was given ten days from the date of the order within which to amend his complaint. More than ten days thereafter having elapsed and plaintiff not having filed an amended complaint in the action, judgment was ordered that plaintiff take nothing by reason of his complaint and that defendants recover their costs. Plaintiff appeals from the judgment.

In support of the judgment, one of the objections which is urged against the complaint is that the damages claimed therein are not such as are provided by the statutes covering a transaction of the nature outlined in the complaint; but the rule of law is that where the facts stated in the complaint show that the plaintiff is entitled to damages of some sort, it is not a fatal error that the pleader has mistaken the rule by which such damages should…