50 Cal. 132 | Cal. | 1875
The amended complaint is uncertain and ambiguous. The demurrer should have been sustained. It does not appear from the complaint whether the policy of insurance and indorsement were or were not delivered to the defendant Joaquin. It is true that Joaquin acquired no interest in the policy if the paper was not delivered, since the indorsement cannot be held to operate as a will for want of the statutory formalities; but the defendants had the right to be informed whether the plaintiff claimed that the instrument was of none effect, because it was not delivered, or, having been delivered, that it operated only as donatio causa mortis. Defendants were entitled to a distinct statement of the facts by plaintiff claimed to exist; and it is no answer to an objection to averments made alternatively, to say that if either of the averments is true, the plaintiff has alleged a cause of action.
The court below did not find that the transaction was a gift, made in immediate expectation of death, but that the indorsement and delivery were “ not solely in consideration of a pre-existing debt, but chiefly as a gift.” This in effect is a finding that there was a valuable consideration, which was, however, in the opinion of the court, inadequate. Doubtless the concurrence of insolvency on the part of the assignor, and inadequacy of price, would be a circumstance strongly tending to establish fraud, but inadequacy or failure of consideration is not of itself sufficient, even as
Judgment and orders overruling demurrer and denying new trial reversed and cause remanded, with direction to the court below to sustain the demurrer, with leave to amend.
Hr. Chief Justice Wallace did not express an opinion.
