The opinion
SHAW, J., dissenting.
I dissent. The complaint does not purport to set forth a copy of the resolution of intention, and it is manifest that it does not give a full copy. The allegation is, that the board “duly made and passed a resolution of intention No. 12,603,
describing the work,
wherein and whereby said board resolved,” etc. And then follows the description of the work as stated in the main opinion." This description is not alleged to be the same as that contained in the resolution, and it cannot be presumed to be the same. The appeal is from- the judgment and is based on the judgment-roll. There is no demurrer, either general or special. And, so far as appears from the record, no objection whatever was made in the court below to the sufficiency of the complaint. It is not a case of a failure to state facts, but of a defective statement of facts. If, notwithstanding the statement of the work ordered done, the complaint had contained a separate specific allegation that the-resolution did describe the work, instead of the recital “describing the work,” it would clearly be sufficient upon appeal. “It is.too late for a defendant, after verdict, to object to defective allegations in the complaint, which, if he had pointed them out by specific demurrer before the trial, or by objections to the evidence at the trial, might have been avoided by amendment.”
(Larkin
v.
Mullen,
*60
128
Cal. 453 ;
McDougold
v.
Hulet,
132 Cal. 154 ;
Harnish
v.
Bramer,
71 Cal. 155 .) “Where the necessary facts are shown by the complaint to exist, although inaccurately or ambiguously stated, or appearing by necessary implication, the judgment will be sustained” even where there is a demurrer.
(Amestoy
v.
Electric etc. Co.,
95 Cal. 314 ;
Bliss
v.
Sneath,
103 Cal. 44 ;
Mullally
v.
Townsend,
119 Cal. 51 ;
Cushing
v.
Pires,
124 Cal. 665 .) The resolution was pleaded as provided in section 456 of the Code of Civil Procedure, and the additional allegations do not take the pleading without the rule established by that section. I also concur in the views expressed in dissenting opinion of Mr. Justice Angellotti.'
Rehearing denied.