Poetker v. Lowry

SHAW, J.

Action upon a promissory note alleged to have been made by defendant to plaintiff. Judgment went for

[617]

plaintiff, from which, and an order denying her motion for a new trial, defendant appeals.

Defendant interposed a general demurrer to the complaint, which was overruled. This ruling is assigned as reversible error. The demurrer was directed to the absence of any allegation in the complaint showing nonpayment of the note. The only statement purporting to constitute such allegation is “that defendant has refused and still refuses to pay the same.” That a party suing upon a contract to pay money must allege a breach thereof—that is, nonpayment of the •money which he seeks to recover—otherwise his complaint is subject to general demurrer for failure to state a cause of action, is fundamental and must be conceded. The question presented is whether the statement above quoted constitutes a sufficient allegation of such fact when tested by general demurrer. While respondent concedes the complaint to be defective, he insists there is not a total lack of essential allegation, and that such defect is cured by the judgment. We conceive the rule to be that where the statement, though defective, is in the form of a conclusion, or is of a character from which the fact of nonpayment is implied, it is sufficient when measured by general demurrer. In such case the attack must be made by special demurrer, pointing out the defect. Thus, while there are authorities in this state to the contrary, it has been held that in the absence of special demurrer a complaint based upon contract and alleging a breach thereof by stating the sum demanded was due and owing, contains a sufficient allegation of nonpayment.

(Stewart

v.

Burbridge,

10 Cal. App. 623, [102 Pac.

962]; Penrose

v.

Winter,

135 Cal. 289, [67 Pac. 772]. See, also,

Knox