Scroufe v. Clay

71 Cal. 123 | Cal. | 1886

The Court.

Action on a promissory note. The complaint averred that the defendant “ has refused and still refuses to pay ” the principal or interest of the note, or any part thereof, and “ that there is now due ” the sum, etc. The complaint was demurred to on the ground that there was no allegation of non-payment. The demurrer was overruled.

We are of opinion the demurrer should have been sustained. The averments of the complaint are not equivalent to an averment of non-payment. “ The failure to pay constitutes the breach, and must be alleged.” (Frisch v. Caler, 21 Cal. 71; Davaney v. Eggenhoff, 43 Cal. 395.)

Judgment reversed, and cause remanded with directions to sustain the demurrer.