Summary
In Scroufe v. Clay, 71 Cal. 123, the averment was, "has refused and still refuses to pay," and that "there is now due" the sum, etc.; held not an allegation of nonpayment.
Summary of this case from Tomlinson v. AyresOpinion
Department One
Appeal from a judgment of the Superior Court of Mendocino County.
COUNSEL:
R. Percy Wright, for Appellant.
T. L. Carothers, for Respondent.
OPINION
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 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.