Poirier v. Gravel
Before: Belcher
Synopsis
Consideration of Written Instrument — Evidence — Burden of Proof. — A written instrument is presumptive evidence of a consideration, and the burden of showing a want of consideration sufficient to support it is upon the party seeking to avoid it.
Id. —Pleading — Recital in Complaint — Surplusage. — A recital in the complaint, in an action upon a written instrument, that the defendant, “ being indebted, ” executed it, is unnecessary, and may be rejected as surplusage.
Contract —Agreement to Pay from Products of Land — Breach — Sale of Land — Pleading. — A complaint for breach of a contract to pay a sum of money in installments, when realized from the products of certain land owned hy the defendant, which alleges the contract, and a sale and conveyance by the defendant to others of the land and products, and that the defendant had not paid a part of the money which she . agreed to pay, sufficiently states a breach of the contract.
Id.—Impossibility of Performance — Voluntary Breach—Demand — Maturity of Cause of Action. — If one voluntarily puts it out of his power to do what he has agreed, he breaks his contract, and is immediately liable for the breach, without demand, even though the time specified for performance has not expired.
Judgment by Default — Order Refusing to Vacate—Conflicting Affidavits — Appeal. — An order refusing to vacate and set aside a judgment by default on the alleged ground of mistake and inadvertence of the defendant will not he reversed on appeal, where the affidavits used on the hearing of the motion are conflicting as to whether the defendant’s failure to answer in time did arise from mistake, inadvertence, or excusable neglect.
Belcher, C. The plaintiff brought this action in April, 1889, the sum of fifteen hundred dollars on a written instrument, which reads as follows:—
“$1,700. Los Angeles, Cal., February 9, 1888. ’’
“ I hereby promise to pay to Godfrey Poirier the sum of seventeen hundred dollars out of the net proceeds of [81]the products, whether mineral, timber, wood, or any other thing, raised or taken from section 3 of township 11 north, range 15 west, of the San Bernardino meridian, in'Kern County, state of California, the said sum to be so paid in installments in such amounts and at such times as I shall realize each month from such products after payment of all costs and expenses of the gathering or obtaining and selling such products. The said sum of money to be paid only and exclusively from such products of said land as I may be entitled to, and no other property of mine shall be subject to said debt or obligation. Mary Pauline Gravel.”
It is alleged in the complaint that the defendant, being the owner of an undivided one-half interest of the land described, and being indebted to the plaintiff in the sum of seventeen hundred dollars, executed and delivered to plaintiff the instrument on the day of its date, and the plaintiff then and there accepted the same; “ that since the making and delivery of said instrument by defendant to plaintiff, the said defendant has sold, disposed of, and conveyed away to other persons the said land and premises in said agreement described, and all mineral, timber, and wood products thereof, and everything that could and might be gathered and raised from the land, and said defendant is no longer the owner thereof; that said defendant has not paid the said sum of seventeen hundred dollars, save and except the sum of two hundred dollars, or thereabouts, and there is due, owing, and unpaid from defendant to plaintiff the sum of about fifteen hundred dollars.” Wherefore judgment is asked for the sum of fifteen hundred dollars and costs of suit.
The defendant demurred to the complaint, on the ground that it did not state facts sufficienheto constitute a cause of action, and on the 6th of MajiShe demurrer was overruled, and ten days allowed to answer. Four days later, notice of the ruling on the demurrer was served on defendant’s attorneys, and on the 31st of the [82]
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