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Scroufe v. Clay

Supreme Court of California
Sep 28, 1886
71 Cal. 123 (Cal. 1886)
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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. Ayres
See 2 Summaries

Opinion

         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.

Summaries of

Scroufe v. Clay

Supreme Court of California
Sep 28, 1886
71 Cal. 123 (Cal. 1886)

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. Ayres

In Scroufe v. Clay, 71 Cal. 123, [11 P. 882], it was held that an averment 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., was insufficient.

Summary of this case from Harlan v. Lambert
Case details for

Scroufe v. Clay

Case Details

Full title:JOHN SCROUFE, Respondent, v. FREDERIC CLAY, Appellant

Court:Supreme Court of California

Date published: Sep 28, 1886

Citations

71 Cal. 123 (Cal. 1886)
11 P. 882

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The gist of the opinion is found in this declaration: "The omission to allege in the complaint that some part…

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The averment of non-payment is insufficient. (Davenay v. Eggenhoff , 43 Cal. 395; Scroufe v. Clay , 71…

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