Scroufe v. Clay (1886) · DecisionDepot

Scroufe v. Clay

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 28, 1886 No. No. 9760Published

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Holding. A complaint in an action on a promissory note must explicitly allege non-payment to state a cause of action, as general averments of refusal to pay or that a sum is due are insufficient.

Issues

Whether an allegation that a defendant 'refused and still refuses to pay' and that a sum 'is now due' constitutes a sufficient allegation of non-payment in an action on a promissory note.

Disposition. Reversed and remanded

Quotations verified verbatim against the opinion

“The failure to pay constitutes the breach, and must be alleged.”

“The averments of the complaint are not equivalent to an averment of non-payment.”

Synopsis

Appeal from a judgment of the Superior Court of Mendocino County.

The facts are stated in the opinion of the court.

The Court. Action on a promissory note. The complaint averred that the defendant “ has refused and still refuses to pay ” the principal or interest of the note, or any part thereof, and “ that there is now due ” the sum, etc. The complaint was demurred to on the ground [124]that there was no allegation of non-payment. The demurrer was overruled.

We are of opinion the demurrer should have been sustained. The averments of the complaint are not equivalent to an averment of non-payment. “ The failure to pay constitutes the breach, and must be alleged.” (Frisch v. Caler, 21 Cal. 71; Davaney v. Eggenhoff, 43 Cal. 395.)

Judgment reversed, and cause remanded with directions to sustain the demurrer.

Scroufe v. Clay

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