Knox v. Buckman Contracting Co.

McFARLAND, J.

This is an appeal by the defendants from a judgment in favor of plaintiff, brought here on the judgment-roll alone. Defendants demurred to the complaint for want of sufficient statement of facts, and their demurrer

[599]

was overruled. They then answered, and judgment was after-wards rendered against them. They contend that their demurrer should have been sustained, and that therefore the judgment should be reversed.

The action is upon several promissory notes, but the only averment in the complaint as to a breach of appellants’ contract to pay any one of the notes is this: 1 ‘That the whole of said note is owing from said defendants to said plaintiff.” It has been frequently held by this court that such an averment is not an averment of the fact of non-payment, and that a complaint in such a case which contains no other averment as to non-payment does not state facts sufficient to constitute a cause of action.

(Frisch

v.

Caler,

21 Cal. 71;

Roberts

v.

Treadwell,

50 Cal. 520;

Schrouf

v.

Clay,

71 Cal. 125;

Ryan

v.

Holliday,

110 Cal. 337;

Richards

v.

Lake View Land Co.,

115 Cal. 642;

Hurley

v.

Ryan,