| Cal. | Jul 1, 1865
This is an action upon a promissory note and mortgage to secure the payment thereof, executed by the defendant, C. M. Orr, and her husband in his lifetime. The complaint in substance alleges that the note and mortgage were made, executed and delivered to plaintiff by the defendant, C. M. Orr, and her husband, William H. Orr, since deceased, in consideration of an indebtedness in the sum of one thousand eight hundred dollars due from them to him. That plaintiff still holds the note and mortgage. That although long since due and payable, the defendants have hitherto failed and refused to pay
The defendant, C. M. Orr, demurred generally to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action, and specially that it did not state facts sufficient to entitle the plaintiff to a personal judgment against her, upon the ground that she was a married woman at the time she executed the note, as appears upon the face of the complaint, and therefore legally incompetent to make the contract.
The demurrer was sustained, and the plaintiff having declined to amend, final judgment was entered for the defendants. The plaintiff appeals, and assigns the ruling of the Court upon the demurrer as error.
The ruling of the Court was correct. Upon the note there is no cause of action against C. M. Orr. (Maclay v. Love, 25 Cal. 367.) It is simply the note of her deceased husband, William H. Orr, and against him no breach of the contract declared on is alleged. The allegation is “that the defendants have failed to pay,” not that William H. Orr in his lifetime failed, etc. A breach of the contract by the party bound to perform is an essential part of the cause of action, and must be alleged in the complaint. (1 Chitty’s Pleadings, 332.) Non constat, but that William H. Orr may have paid the note in his lifetime from all that appears in the complaint. If the note was not paid by William H. Orr in his lifetime, and remains still unpaid, the plaintiff has a cause of action upon his mortgage against the defendants, and has a right to have the amount due ascertained and fixed by the Court and a decree foreclosing the mortgage, but he has no right to a personal judgment against any of the defendants. (Fallon v. Butter, 21 Cal. 24; Willis v. Farley, 24 Cal. 490; In the Matter of the Estate of William H. Orr, deceased, ante, 101.)
Judgment affirmed.