Scroufe v. Clay
California Supreme Court
Appeal from a judgment of the Superior Court of Mendocino County. The facts are stated in the opinion of the court.
1Opinion of the Court
The Court.
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 *124that 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,…
2Cases cited2 opinions
- Frisch v. CalerCalifornia Supreme Court · 1862
- Davanay v. EggenhoffCalifornia Supreme Court · 1872
3Cited by18 opinions
- Penrose v. WinterCalifornia Supreme Court · 1901
- Gardner v. DonnellyCalifornia Supreme Court · 1890
- Wise v. HoganCalifornia Supreme Court · 1888
- Ryan v. HollidayCalifornia Supreme Court · 1895
- Grant v. SheerinCalifornia Supreme Court · 1890
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