Henke v. Eureka Endowment Ass'n of Cal.

California Supreme Court Dec 21, 1893 No. No. 15192Published

Before: Searls

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Holding. The court held that a complaint alleging a written contract to pay money is sufficient without an express averment of consideration, as the writing itself creates a legal presumption of consideration under the Civil Code. Furthermore, the court determined that extraneous allegations regarding membership and endowment certificates did not render the complaint fatally ambiguous or uncertain.

Issues

Whether a complaint must expressly aver consideration for a written contract to be sufficient under the Code.
Whether the inclusion of redundant allegations regarding membership and endowment certificates renders a complaint demurrable for ambiguity or uncertainty.

Disposition. affirmed

Quotations verified verbatim against the opinion

“When the plaintiff averred in her complaint that the defendant executed a contract in writing wherein it promised, at a given date, to pay her a certain sum of money she stated facts from which the law presumed a consideration”

“The necessity of pleading a consideration for the contract is obviated by the fact that it is in writing, and not by the mode of pleading it.”

Synopsis

Contract—Presumption op Consideration op Written Instrument— Pleading.—A complaint which alleges that a corporation defendant executed a contract in writing whereby it promised and agreed to pay the plaintiff on a given date a certain sum of money, states facts from which the law presumes a consideration, and the failure specially to allege a consideration for the written contract is not ground of demurrer, though the contract is not set out in Tunc verba.

Id.—Presumption op Law.—Presumptions of law need not be averred in a complaint.

Id.—Matter op Inducement—Ambiguity.—Matter of inducement leading up to the written contract upon which the cause of action is based does not render the complaint ambiguous, uncertain, or unintelligible.

Id.—Redundant Allegations.—That a complaint alleges facts which are redundant is not a cause for demurrer. The proper remedy in such a case is a motion to strike out.

Searls, C. The respondent, Christena Henke, brought this action to recover $600.

The complaint avers in substance that the defendant is a corporation, organized and having for its object the [431]payment to its members of certain sums of money at stated times as periodical installment endowments; that on the eighth day of February, 1889, plaintiff became a member of said corporation defendant, and received from it, duly executed, etc., an endowment certificate by which she became, and still is, entitled to all the rights and privileges of membership, and to participate in the endowment fund in the amount of $6,000, to be paid at ten stated periods, computed according to the maturity table of the constitution of defendant, in ten respective amounts not to exceed $600 each; that defendant thereupon duly executed a certain contract in writing whereby it promised and agreed to pay plaintiff, on the second day of January, 1892, the sum of $600. That no part of said sum has been paid.

Wherefore plaintiff asks judgment for $600 and costs of suit.

Defendant demurred to the complaint, upon the grounds:

1. That it did not state facts sufficient to constitute a cause of action.

2. That the complaint is ambiguous, in that it cannot .be determined whether plaintiff seeks to recover by virtue of the endowment certificate of February 8, 1889, or by virtue of the contract.

3. That it is unintelligible, in that it does not allege any consideration for the contract to pay plaintiff $600.

4. That the complaint is uncertain, because it cannot be determined therefrom:

(a) Whether there is any mutuality rendering the alleged promise binding;

(b) Whether plaintiff ever performed the, or any, act or acts on her part necessary to perfect a cause of action upon the contract;

(c) Whether, according to the maturity table of the constitution of defendant, a right of action upon the promise of defendant had accrued to plaintiff.

The demurrer was overruled by the court, and leave given defendant to answer.

[432]

Henke v. Eureka Endowment Ass'n of Cal.

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