163 P. 353 | Cal. | 1917
Plaintiff appeals from a judgment entered upon the sustaining of the defendant's demurrer to the second amended complaint.
The complaint in question alleged that on July 21, 1910, one Planz drew his check for $3,799.66 on the defendant, the Bank of Bakersfield, payable to "Kern Valley Bank or bearer." Negotiable paper, so drawn, is payable to the bearer. (Civ. Code, sec.
The complaint alleges further that plaintiff was compelled to employ counsel in said action, and to expend money for costs and traveling expenses, and has been deprived of the use of said sum of $3,799.66, and of interest thereon, from the nineteenth day of May, 1911. It is also alleged that the plaintiff has suffered general damages in the further sum of $2,350. The prayer is for judgment for interest on the amount of the check, together with the amount of the various other items of damage alleged.
The demurrer specified as grounds (1) that the complaint does not state facts sufficient to constitute a cause of action, and (2) that there is another action pending between the same parties for the same cause. This demurrer having been sustained without leave to amend, judgment was entered that the plaintiff take nothing by the action, and that the defendant recover from plaintiff its costs. *402
By certifying the check the bank became bound as a direct and original promisor to the payee. (1 Morse on Banks and Banking, 4th ed., sec. 414; 5 R. C. L. 523, 524.) Its obligation was one "to pay money only," and the measure of damages for the breach of such obligation is "the amount due by the terms of the obligation, with interest thereon." (Civ. Code, sec.
Nor was the demurrer properly sustained upon the second ground specified. The plea of another action pending is dilatory in its nature, and is not favored. (1 C. J. 28;Thompson v. Lyon,
Furthermore, the judgment here given was one on the merits. The defense of another action pending does not authorize such a judgment. The only relief to which a defendant is entitled upon establishing this defense is a judgment that the action abate. (Larco v. Clements,
The judgment is reversed.
Shaw, J., and Lawlor, J., concurred.