Slight v. Frix

ANDERSON, J.

— It is insisted by the appellant that there was a fatal variance between the allegata and probata, that the complaint is for lumber sold, and the proof shows a sale of timber as distinguished from lumber. The suit was started by attachment, and the affidavit sets up a lien for stnmpage under section 4814 of the Code of 1907 for timber sold. It is true that the complaint charges for lumber sold; but it also claims under a lien for stumpage, under the statute, and which said statute gives a lien for timber sold. It is therefore manifest that the complaint attempted to conform to the affidavit, and to claim under section 4814 of the Code of 1907, and the word “lumber,” as used, was synonymous with “timber,” when considered in connection with all the averments of the complaint and the affidavit;

While pleading must be construed against the pleader on demurrer, it should be liberally construed when necessary to support a judgment, and no point was made, by demurrer or otherwise, to point out any defect in the complaint or variance between it and the affidavit. We are therefore of the opinion that the trial *232 court did not err in rendering judgment for the plaintiff. There may be a well-defined distinction between timber and lumber; but inasmuch as the complaint in the case at bar claimed a lien for stumpage for lumber sold, the use of the word “lumber” was intended for “timber,” when taken in connection with the other averments of the complaint, the material sold was under a stumpage contract, and must have referred to timber sold and not lumber. We do not mean to hold that the complaint was good as against demurrer, but think that it -can be so reasonably construed as to harmonize with the affidavit and'evidence.

The judgment of the city court is affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., con-cur.