Holmes v. West

17 Cal. 623 | Cal. | 1861

Baldwin, J. delivered the opinion of the Court

Cope, J. concurring.

This was a suit brought on a promissory note and to enforce a mortgage given to secure it. The complaint was demurred to on the ground assumed that the note was not due at the time of the suit. The note is payable generally, not specifying any time of payment, with a provision that interest shall accrue after a certain event, at a given rate. The rule is well settled that a note thus payable is due immediately; and the mere provision in respect to interest does not alter the principle. The demurrer, therefore, is not well taken.

The other objections are not sustained. There seems to be no statement in the record. The decree finds the sum due on the note and mortgage set out in the complaint. Probably this is not a very formal mode of stating the facts, but it may be considered an indirect assertion of the substantial matters in the complaint, which were only the facts of the execution and delivery of the note and mortgage. The execution of the note and mortgage do not seem to he denied in the answer, and there appears no proof of the matters set out in the answer. We see no use, under the circumstances, of remanding the case.

Judgment affirmed.