210 P. 419 | Cal. | 1922
Plaintiff brought this action to recover the sum of $8,000, as a balance due on a book account. The complaint alleged that on November 30, 1916, the defendant was indebted 'to plaintiff in the sum of $13,513.15 for coal sold and delivered; that on the second day of December, 1916, the defendant made, executed and delivered to plaintiff two promissory notes for $3,750 and $8,000, respectively, payable one day after date; that the note for $8,000 was secured by a mortgage upon real property, of even date, and *26 duly recorded; that the full face value of said notes was credited to defendant on said book account on the date of their execution, and the balance of $1,763.15 was carried forward on said book account, and was thereafter paid by the defendant; that no part of the principal of said $8,000 note has been paid; that on or about the 26th of November, 1920, plaintiff canceled and offered to redeliver said $8,000 note to defendant, and at said time offered to defendant to redeliver the mortgage securing the same, together with the release thereof, duly executed, but the defendant refused to accept said offer of plaintiff, and said note and mortgage, together with said release, are now held by plaintiff for defendant, subject to its directions. A demurrer on general and special grounds was interposed. It was sustained, without leave to amend, and from the judgment which followed plaintiff has appealed.
[1] On the face of the complaint no question can be raised but that the amount of the original indebtedness of the defendant to the plaintiff, represented by the book account, was covered by the two notes executed by the defendant on December 2, 1916. It is not alleged in the complaint that the notes were taken in payment. The situation is, therefore, governed by the well-established rule, that in such a case, the indebtedness for which the notes are taken is not paid, in the sense that it is absolutely discharged. If default be made upon the notes, an action can be maintained upon the original debt, as if the notes had never been given. (Ellison v. Henion,
It is clear under the facts alleged in the complaint that the promissory note taken by the plaintiff from the defendant was but the evidence of the debt represented by the pre-existing book account. The mortgage was taken as security for the payment of that indebtedness. No waiver by respondent is pleaded, and the security is not shown to have become valueless. Appellant has not, therefore, brought (itself) within a statement of facts sufficient to state a cause of action, it not being shown that it has exhausted the remedy provided through foreclosure of the *28 security taken by it for the payment of the original indebtedness.
The demurrer to the complaint was properly sustained.
The judgment is affirmed.
Lennon, J., Richards, J., pro tem., Lawlor, J., Shaw, C. J., and Wilbur, J., concurred.