Burke v. Dittus

KERRIGAN, J.

This is an action to foreclose a mechanic’s-, lien. A special demurrer to the complaint was overruled, after which the defendant answered. Thereafter a jury trial was demanded, and the court, at the request of the defendant, submitted to the jury one issue—“Was the building contract as modified, between plaintiff’s assignors and the defendant F. M. Dittus, substantially performed on the part of plaintiff’s assignors prior, to the 31st day of August, 1905?”' The jury brought in a verdict in favor of plaintiff, and the-court thereafter adopted this verdict, and, upon the hearing-of further testimony, rendered its judgment in favor of the-plaintiff and against the defendant, F. M. Dittus. From this, judgment and from an order denying the motion for a new trial this appeal is prosecuted.

The appellant contends that the complaint is fatally defective for a number of reasons, the first of which is that the complaint, being for money due upon contract, does not aver nonpayment, the allegation in that behalf being that “the whole amount due ... is the sum of twenty-four hundred and forty dollars.” Appellant’s position is that this allega

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tion is not equivalent to an averment of nonpayment; that it is a mere conclusion of law and not an averment of fact.

In an action of this character the gist of the action is the breach of the contract, and unless there is an allegation of nonpayment, the complaint is demurrable.

The demurrer in this case, however, is special, and does not embody as one of its grounds this particular defect. If there had been no attempt to aver nonpayment, either by an allegation amounting only to a conclusion of law or otherwise, the complaint would not have stated a cause of action; and this could be urged at any time, even without demurrer

(Rickards

v.

Travelers’ Ins. Co.,

80 Cal. 505, [22 Pac. 939];

Hurley

v.

Ryan,