Poett v. Stearns

Appeal from the District Court, First Judicial District, Los Angeles County.

The complaint contained the usual allegations on a promissory note, of which the following is a copy:

“San Francisco, April 4, 1861.

“$15,000.

“Value received, I promise to pay to the order of J. H. Poett, twelve months after date, fifteen thousand dollars, with interest at the rate of one and one-fourth (1|) per cent per month until paid.

“Abel Stearns.”

“ I agree to pay the above written sum of fifteen thousand dollars in gold coin of the United States.

“Abel Stearns.”

It then averred that on the 2d day of July, 1861, the defendant Stearns, to secure the payment of the note, executéd to plaintiff a mortgage on certain property (describing it) in Los Angeles. A copy of the mortgage was attached to the complaint. The allegations concerning the mortgage were in the usual form. The complaint also alleged that the parties other than Stearns made defendants then had or claimed to have some interest in or claim upon the mortgaged premises, or some part thereof, as mortgagees, attaching creditors, or otherwise, which interest and claims were, all subsequent and subject to the lien of plaintiff’s mortgage.

The prayer was in the usual form in such cases, and for judgment in gold coin, and for such other and further relief as plaintiff might require and to the Court might seem proper.

The defendants, Stearns, Heilman, and Domec, demurred to the complaint, because it did not state facts sufficient to constitute a cause of action, and because there was a defect of parties defendant. The Court sustained the demurrer on the ground that the supplement to the note promising to pay in gold coin could not be enforced because it bore no date, and upon failure of the plaintiff to amend, gave judgment for defendants. Plaintiff appealed from the judgment.