112 P. 68 | Cal. Ct. App. | 1910
The controlling question involved upon this appeal relates to the sufficiency of an amended answer filed by defendant pending the hearing of a motion for judgment upon the pleadings. This amended answer was filed before the trial of an issue of law raised by a demurrer to the original answer The effect of filing such amended answer, if properly filed, was to supersede the original answer. (Kuhland v. Sedgwick,
The complaint alleged a loan by plaintiff to defendant without agreement as to time of repayment. The answer denied that no time for repayment was agreed upon, but alleged that the same was to be payable when plaintiff and an associate paid to defendant a certain $6,000, which they had agreed to pay when a patent was issued for certain land. It is alleged that such patent has never issued, but it is not averred that the $6,000 has not been paid. The event which should mature the loan was the payment of the money. Construing the answer under the rule "that the pleading is to be construed most strongly against the pleader, and that no intendments can be indulged in its aid" (Callahan v. Loughran,
The payment of the money not being negatived, we see no error in the record, and the judgment appealed from is affirmed.
Shaw, J., and James, J., concurred.