115 Cal. 642 | Cal. | 1897
Defendant appeals upon the judgment-roll from a judgment for plaintiff, the point made by appellant being that the demurrer to the first, fifth, and seventh counts of the complaint should have been sustained.
The complaint contains several different counts. In each count there is an averment of an indebtedness of the appellant to a certain person upon a contract, and an assignment by such person of the alleged cause of action to respondent. In each of the counts, except the first, fifth, and seventh, there is an averment that the amount claimed “has not been paid, or any part thereof”;
Respondent contends that this defect in the .fifth count is cured by the answer. Upon looking at the answer it does not seem to us to bring the case within the rule contended for by respondent; but it hardly seems necessary to now determine that question definitely, for, as the other two counts will have to be amended so as to directly aver nonpayment, a similar amendment can readily be made to the fifth count, which will avoid this question.
The judgment is reversed, with directions to the court below to sustain the demurrer to the first, fifth, and seventh counts of the comnlaint.
Henshaw, J., and Temple, J., concurred.