No. 13111 | Cal. | Sep 12, 1889
This is an action on a policy of life insurance. There was a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled; the defendant answered, denying the material allegations of the complaint, and setting up some affirmative matters. There was a trial by jury, verdict for the plaintiffs, and judgment accordingly. The defendant appeals on the judgment roll.
The only point made in this court is, that the demurrer to the complaint was improperly overruled, for the reason that there-was no allegation in the complaint that the policy was unpaid, or any allegation showing a breach of the contract.
A party suing upon a contract to pay money must show a breach of the contract, or his complaint states no cause of action. Therefore it is held that the complaint must, in such cases, allege the non-payment of the money claimed under the contract. (Du Brutz v. Jessup, 70 Cal. 75" court="Cal." date_filed="1886-06-28" href="https://app.midpage.ai/document/du-brutz-v-jessup-5442583?utm_source=webapp" opinion_id="5442583">70 Cal. 75; Morgan v. Menzies, 60 Cal. 341" court="Cal." date_filed="1882-03-30" href="https://app.midpage.ai/document/morgan-v-menzies-5440726?utm_source=webapp" opinion_id="5440726">60 Cal. 341.)
Numerous other decisions of this court might be cited, but the question is too well settled in this state to render such citations necessary.
The complaint was fatally defective in this respect. It contained no allegation of non-payment; nor is there any allegation from which such non-payment can be implied.
Counsel for respondent attempt to meet the objection on two grounds, viz., that the demurrer appears from the record to have been submitted without argument, which should be taken as a waiver of the point, and that the defect was cured by the verdict in favor of the plaintiffs.
Neither of these grounds can be maintained. We know of no reason for holding that a party who submits a demurrer without argument thereby waives any objection raised by the demurrer. The objection is taken by the demurrer, and not by the argument, and it points
The doctrine that a defective pleading may be cured by verdict has no application where there is an entire absence of a material allegation. (Barron v. Frink, 30 Cal. 489; Morgan v. Menzies, supra.)
Judgment reversed.
Thornton, J., Paterson, J., Sharpstein, J., Fox, J., and Beatty, C. J., concurred.