Merritt v. Wilcox — 1 Cal. Unrep. 884

Majority

p. 884

SAMUEL MERRITT, Respondent, v. P. S. WILCOX, Appellant.

No. 4691;

October 7, 1875.

Headnote

Payment — Kind of Money. — An Allegation in a Complaint for the payment of money that the understanding between the parties was that payment was to be made in a particular sort of money, presents an issuable and material fact which, if denied by the answer, must be proven.

Trial. — A General Verdict That the Plaintiff Recover a Certain Sum of money may be construed- as a finding in favor of the plaintiff upon all the issuable facts stated in the complaint.

p. 885

Judgment — Amending to Make Payable in Gold. — When an issuable fact, in am action for the payment of money, is the payment in gold coin, and, the jury having rendered a general verdict for the plaintiff for a certain sum, judgment is entered accordingly, the trial court may amend the judgment by making it payable in gold.

APPEAL from Third Judicial District, Alameda County.

Geo. A. Nourse and A. P. Hoge for respondent; McAllister & Bergin and J. E. Martin for appellant.

See Merritt v. Wilcox, 52 Cal. 238 .

— In an action on a contract for the payment of money the plaintiff may allege in the complaint that it was understood and agreed by and between the parties that payment should be made in a specified kind of money; and such allegation presents a material and issuable fact, and, if denied by the answer, must, like any other fact in issue, be proven. It in truth constitutes a material term of the contract. The rule is well recognized that a general verdict— that the plaintiff recover a certain sum of money — is construed as a finding in favor of the plaintiff upon all the issuable facts stated in the complaint. No sufficient reason was suggested at the argument why the issue in question should be withdrawn from the operation of the general rule, nor do we perceive anything in the nature of that term of the contract, or in the allegation of that fact, as a matter of pleading which requires a construction to be given to the verdict differing in any respect from that which would be applicable in respect to any other issuable fact averred in the complaint.

We are therefore of the opinion that the court, without regard to the affidavits filed by the respective parties, was fully justified in amending the judgment so as to make the money payable in gold coin.

Judgment and order affirmed.

We concur: Crockett, J.; Niles, J.

Cases cited

Merritt v. Wilcox 52 Cal. 238 Cal. p. 885