Majority
p. 123[No. 9760. Department One. September 28, 1886.] JOHN SCROUFE, Respondent, v. FREDERIC CLAY, Appellant.
Headnote
Pleadings—Action on Promissory Note—Non-payment must be Alleged—Insufficient Averment. — The complaint in an action on a promissory note must allege its non-payment. An allegation that the defendant has refused and still does refuse to pay the principal or interest of the note, or any part thereof, and that there is now due the plaintiff a certain sum, is not sufficient.Appeal from a judgment of the Superior Court of Mendocino County.
The facts are stated in the opinion of the court.
R. Percy Wright, for Appellant.
T. L. Carothers, for Respondent.
Action on a promissory note. The complaint averred that the defendant “ has refused and still refuses to pay ” the principal or interest of the note, or any part thereof, and “ that there is now due ” the sum, etc. The complaint was demurred to on the ground
p. 124
that there was no allegation of non-payment. The demurrer was overruled.
We are of opinion the demurrer should have been sustained. The averments of the complaint are not equivalent to an averment of non-payment. “ The failure to pay constitutes the breach, and must be alleged.” (Frisch v. Caler, 21 Cal. 71 ; Davaney v. Eggenhoff, 43 Cal. 395 .)
Judgment reversed, and cause remanded with directions to sustain the demurrer.
Cases cited
- Frisch v. Caler 21 Cal. 71 p. 124
- Davanay v. Eggenhoff 43 Cal. 395 p. 124