Samuels v. Larrimore

COOPER, P. J.

two appeals are in separate records, but they will be considered together, as one is an appeal by defendant from the judgment against him, and the other from the order denying his motion for a new trial, and the questions are all considered together in the briefs filed by counsel.

The complaint is as follows: “That within two years last past said defendant became indebted to one Frank A. Whitman, in the sum of $635.86 for so much money loaned and advanced to said defendant by said Whitman at various times during said period at the special instance and request of said defendant. That prior to the commencement of this action said Whitman assigned, transferred and set over unto plaintiff said claim, demand and cause of action against said defendant. That no part of said indebtedness has been paid, and that there is now due, owing and payable by said defendant to said plaintiff on account of said indebtedness said sum of $635.86, together with interest thereon at the legal rates from the date of such loans and advances.”

The complaint concludes with the usual prayer for judgment for the amount claimed.

The first contention of appellant is that the court erred in overruling his demurrer to the complaint. His argument is that the complaint does not allege nonpayment. The contention is entirely devoid of merit. After alleging the facts as to how the indebtedness arose and the amount thereof, the allegation is “that no part of said indebtedness has been paid.” The word “indebtedness” is not here used as it has sometimes been in the body of a pleading, in which the courts have said that it was a conclusion of law. As it is here used in the last paragraph of the complaint it refers to the said sum of $635.86, which it is alleged had been loaned and advanced to defendant at his special instance and request. Any person of ordinary understanding would know that the pleader, by the word “indebtedness” as here used in said paragraph, refers to the sum which' he had alleged had been advanced to defendant by plaintiff's assignor.

[339]

Nor is there any merit in appellant’s claim that the plaintiff should have alleged a demand of payment. The complaint is of itself a demand; and not only this but the answer of defendant shows that a demand would have been unavailing. Defendant in one part of his answer denies the indebtedness, and in another and separate part he alleges that the money was advanced to him by plaintiff’s assignor upon the understanding that he was to repay it only when convenient to him, and that “it has not been convenient for said defendant to repay any portion thereof to said Whitman. ’ ’