"Our statute has abrogated the common law doctrine of an interpretation adverse to the pleader, and

requires that in the construction of a pleading, for the purpose

Where two theories of action are pleaded, and major theory fails, pleader may avail himself of minor theory, if adoption thereof works no injustice to opponent. L. B. Menefee Lumber Co. v. MacDonald, 122 Ore. 579, 260 Pac. 444.

Where a complaint is objected to on a question of evidence, all intendments are in its favor, while a contrary rule prevails in case of a demurrer before trial. Cederson v. Oregon R. & Nav. Co., 38 Ore. 343, 62 Pac. 637, 63 Pac. 763. 1309.

Language controls fig

ures.

The language controls the figures. where there is a discrepancy in the claim of damages in a complaint between the original words and figures used. Cordrey v. The Bee, 102 Ore.

tions

with

a

Palmer

shall be liberally construed

view to substantial justice between the parties." Houghton & V. Beck, 9 Ore. 325. Failure to state facts with clearness required in good pleading is not ground of demurrer. Wong, 150 Ore. 406, 42 P. (2d) 763,

45 P. (2d) 914.

1306.

Clarkson v.

rer must be construed most strongly

Complaint objected to by demur

against pleader.

Aune v. Oregon

Trunk Ry., 151 Ore. 622, 51 P. (2d)

663.

All reasonable intendments are in favor of a pleading when attacked by general demurrer. Clem Lumber Co. v. Elliott Lumber Co. (Tex. Com. App.), 254 S. W. 935.

Every intendment in favor of petition will be indulged in testing its sufficiency against general demurrer. Consolidated Petroleum Co. v. Austin (Tex. Civ. App.), 283 S. W. 879; J. P. Wooten Co. v. First Nat. Bank (Tex. Civ. App.), 281 S. W. 196; Cohen v. Hill (Tex. Civ. App.), 286 S. W. 661.

1327. 1328.

Technical objections not regarded.

In Economic Water Heating Corp. v. Dillon Supply Co., 156 Va. 597, 159 S. E. 78, the court said: "The courts more and more look to the trial of an action at law, not as a battle of the pleaders, but more as a trial of the substantive rights of the parties and should not regard seriously objections, more technical than real, which do not operate to the prejudice of the substantial rights of a litigant."

1329. Washington.

1330. - Statutory provisions.

as

2 Remington's Rev. Stats. Wash. (Ann. 1932) 285 is the same Crawford & Moses Ark. Dig. (1921) 1224.

1331.

Cases.

1332.

Intendments on demur

rer.

All reasonable intendments are in

Contrary to the rule of the common law, a complaint, when its sufficiency as stating a cause of action is challenged, is to be liberally construed (Kuechler v. Volgmann, 180 Wis. 238, 192 N. W. 1015; Roeser v. Sauk County, 166 Wis. 417, 165 N. W. 1086; Lisko v. Retzlaff, 156 Wis. 247, 145 N. W. 648; Paradies v. Woodard, 156 Wis. 243, 145 N. W. 657; Laun v. Kipp, 155 Wis. 347, 145 N. W. 183; Darlington v. J. L. Gates Land Co., 142 Wis. 198, 125 N. W. 456; Scofield v. Milwaukee Free Press Co., 126 Wis. 81, 105 N. W. 227), with all reasonable inferences and intendments in favor of the plaintiff (Laun v. Kipp, 155 Wis. 347, 145 N. W. 183; St. Croix Consol. Copper Co. v. Musser-Sauntry Land, Logging & Mfg. Co., 145 Wis. 267, 129 N. W. 644; Darlington v. J. L. Gates Land Co., 142 Wis. 198, 125 N. W. 456 [presuming that instruments referred to in complaint were recorded in such order as to uphold, not defeat, a cause of action]).

It is a familiar principle that a complaint must be liberally construed in favor of the pleader. Kuechler v. Volgmann, 180 Wis. 238, 192 N. W. 1015.

A complaint must be liberally construed on a demurrer thereto. Bechthold v. O. F. P. Investment Co., 221 Wis. 303, 266 N. W. 915; Horlick v. Swoboda, 221 Wis. 373, 267 N. W. 38.

All reasonable intendments are in favor of pleadings on general demurrer. Lipman v. Manger, 185 Wis. 63, 200 N. W. 663; July v. Adams, 178 Wis. 375, 190 N. W. 89. 1339.

- All allegations considered.

The nature of a complaint, as to the kind of action intended and whether sounding in contract or tort, law or equity, is to be determined from a consideration of all facts alleged, rather than from any isolated part. Jones v. Supreme Court I. O. O. F., 141 Wis. 667, 124 N. W. 1027. 1340.

ters.

Supplying essential mat

sufficiently alleged to meet any challenge for insufficiency. If, viewing the pleading with that large measure of liberality, it discloses a situation warranting any kind of judicial relief, it contains a good cause of action therefor, though very different from that which the pleader supposed himself entitled to." Laun v. Kipp, 155 Wis. 347, 145 N. W. 183.

"Under the rule binding us as to liberal constructions of pleadings, if two permissible constructions of a complaint are presented, we are required to adopt that which will support a cause of action, rather than another which would tend to show no legal ground for action." Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340, 190 N. W. 110.

If it appears that a contract referred to therein is alleged chiefly or wholly by way of necessary inducement, and that emphasis is laid on wilful or wrongful disregard of this duty, the action is properly regarded as in tort; but if a contract is stated as the basis of the action and a wilful or negligent breach of duty is not stressed, but rather a breach or default in carrying out the contract, the action is on contract. Boehrer v. Juergens & Anderson Co., 133 Wis. 426, 113 N. W. 655; Francisco v. Hatch, 117 Wis. 242, 93 N. W. 1118.

The complaint is on contract where it avers that the defendant, for a valuable consideration, undertook and agreed to present a note to the maker and in case of nonpayment to return the note to the plaintiff on a specified date, but failed to return the note, whereby the sum due was lost. Kiblinger Co. v. Sauk Bank, 131 Wis. 595, 111 N. W. 709.

A complaint is on implied contract or resulting trust where it is alleged that the defendant, as confidential

agent of the plaintiff, induced the latter to purchase land at excessive. prices and retained the profits for his own benefit. Somervaill v. MeDermott, 116 Wis. 504, 93 N. W. 553. But the complaint is in tort where it alleges that one L. procured a note from the plaintiff by fraud, and the defendant took the note without consideration and with knowledge of the fraud, collected it, and converted the proceeds, by reason of which "fraud and conversion" the plaintiff suffered damages. German Nat. Bank of Ripon V. Princeton State Bank, 128 Wis. 60, 107 N. W. 454. The action is likewise in tort where it is alleged that false and fraudulent representations of the defendant induced the plaintiff to execute a mortgage to him, which was foreclosed by an assignee, resulting in loss to the plaintiff. Låne v. Frawley, 102 Wis. 373, 78 N. W. 593.

A complaint is in tort where it alleges that the plaintiff owns hydraulic power created by a dam and that the defendant wrongfully took and appropriated the power to his own use. Green Bay & M. Canal Co. v. Kaukauna Water Power Co., 112 Wis. 323, 87 N. W. 864.