Legal Opinion

Scroufe v. Clay

California Supreme Court

Decided September 28, 1886No. 9760PublishedCited by 18 opinions

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

  1. Frisch v. CalerCalifornia Supreme Court · 1862
  2. Davanay v. EggenhoffCalifornia Supreme Court · 1872

3Cited by18 opinions

  1. Penrose v. WinterCalifornia Supreme Court · 1901
  2. Gardner v. DonnellyCalifornia Supreme Court · 1890
  3. Wise v. HoganCalifornia Supreme Court · 1888
  4. Ryan v. HollidayCalifornia Supreme Court · 1895
  5. Grant v. SheerinCalifornia Supreme Court · 1890

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