Dysert v. Weaver — 46 Cal. App. 576

Majority

p. 576

[Civ. No. 3176.

Second Appellate District, Division Two

March 16, 1920.]

WALTER V. DYSERT et al., Respondents, v. WILLIAM K. WEAVER et al., Appellants.

Headnote

[1] Pbomissory Notes—Action upon—Sufficiency of Allegation of Nonpayment.—In an action upon a promissory note, an allegation that a stated sum, “the interest on said promissory note” to a specified, date, “has been paid, and that no other or further sum has been paid thereon,” constitutes a sufficient allegation of nonpayment as against the general objection that the complaint does not state" a cause of action.

p. 577

[2] Id.—Action by Payees Against Makers—Ownership op Note— Pleading.—In an action by the payees against the makers . of a promissory note, it is sufficient to allege the execution and delivery of the note to the plaintiffs, without alleging that they are the owners and holders thereof.

APPEAL from a judgment of the Superior Court of Los Angeles County-. L. H. Valentine, Judge. Affirmed.

The facts are stated in the opinion of the court.

James B. McCracken for Appellants.

Waldo, Root & Dysert and George E. Waldo for Respondents.

This is an action upon a promissory note executed by defendants. Plaintiffs are the payees named in the note.

[1] Upon the trial, when plaintiffs sought to introduce their evidence, defendants objected upon the ground that the complaint does not state a cause of action. It is claimed that there is no sufficient allegation of nonpayment. The complaint alleges that “ninety-one dollars and eighty-seven cents ($91.87), the interest on said promissory note to October 7, 1916, has been paid, and that no other or further sum has been paid thereon.” Appellants contend that the word “thereon” modifies the word “interest,” and that this allegation amounts to no more than an averment that no more has been paid on the interest than ninety-one dollars and eighty-seven cents. We cannot assent to this construction of the plain and unambiguous language of the complaint. We think it quite clear that the word “thereon” refers to the words “promissory note,” and that the allegation is equivalent to an averment that all the interest that accrued up to October 7, 1916, has been paid, and that no other or further sum has been paid on the note.

[2] There is no merit in the contention that the complaint should have alleged that plaintiffs are the “owners and holders” of the note. In an action by the payee against the maker it is sufficient to allege the execution and de

p. 578

livery of the note to plaintiff, without alleging that he is the owner and holder. It will be presumed that the payee of a note, in possession thereof, is the owner. (Bank of Shasta v. Boyd, 99 Cal. 604 , [ 34 Pac. 337 ] ; Locke v. Klunker, 123 Cal. 231 , 239, [ 55 Pac. 993 ] ; Yellow Jacket etc. Co. v. Holbrook, 24 Cal. App. 687 , [ 142 Pac. 128 ] ; 8 C. J., p. 886, title “Bills and Notes,” par. 1159.)

The appeal is wholly without merit. It is inconceivable that it could have been taken with any reasonable hope of success. Because the appeal is manifestly frivolous, appellants, we think, should pay respondents such damages as may be just. We consider one hundred dollars a proper sum to be charged.

It is ordered that the judgment be affirmed, and that respondents recover of appellants the sum of one hundred dollars as damages.

Sloane, J., and Thomas, J., concurred.

Cases cited

Bank of Shasta v. Boyd 99 Cal. 604 Cal. 1893-10-05 p. 578
Locke v. Klunker 123 Cal. 231 Cal. 1898-12-31 at 239 p. 578
Yellow Jacket Gold & Silver Mining Co. v. Holbrook 24 Cal. App. 687 Cal. Dist. Ct. App. 1914-06-03 p. 578