Talcott v. Meakin

THE COURT.

There was no error committed by the trial court in the overruling of the defendant’s demurrer. The plaintiff’s complaint alleged the execution of the defendants’ promissory note to the plaintiff for a specified sum, and the

[294]

contemporaneous execution of a mortgage by the defendants as security for the payment of the obligation of the note. The note in suit was alleged to have been made, dated, and delivered to the plaintiff on the twenty-third day of October, 1907; and it is not disputed that, as against a general demurrer, it appears with sufficient certainty from the allegations of the complaint as a whole that the obligation of the note had matured and was due and payable at the time of the commencement of the action.

The plaintiff’s complaint was not demurrable on the ground of uncertainty, etc., merely because it did not set out

in haec verba

the mortgage in suit. The plaintiff’s complaint purported to plead in substance and legal effect the terms, conditions, and covenants of the mortgage, including the covenant concerning attorneys’ fees; and a contract may be declared on either

in haec verba,

or in substance and according to its legal effect.

(Stoddard

v.

Treadwell,

26 Cal. 294;

Love

v.

Sierra Nevada etc. Mining Co.,

32 Cal. 639, [91 Am. Dec. 602] ;

Murdock

v.

Brooks,

38 Cal. 596;

White

v.