Opinion
No. 33337.
December 15, 1955.
PLEADING — COMPLAINT — SUFFICIENCY — AS AGAINST DEMURRER. A complaint is not demurrable where facts substantially constituting a cause of action are alleged or are reasonably inferable from the language used; and allegations of ultimate facts and conclusions of law are good against a general demurrer.
SAME — MOTIONS — MAKING COMPLAINT MORE DEFINITE AND CERTAIN. Objections to the form rather than the substance of the pleadings must be interposed by motion to make the averment more definite and certain.
BILLS AND NOTES — ACTIONS — COMPLAINT — OWNERSHIP OF NOTE. A complaint in an action upon a promissory note is not defective because it does not allege that the plaintiff is the holder of the note, where the note, which is set out in haec verba in the complaint, designates the plaintiff as the payee; since, when the payee of a promissory note brings an action thereon, there is a reasonable inference that he is the holder thereof.
SAME — COMPLAINT — VERIFICATION. It cannot be held that the verification of a complaint on a promissory note was fatally premature because the last installment on the note was not due until more than five months after the date of the verification, where it appears from the face of the note that at least ten installments were past due at the time of the verification.
SAME — COMPLAINT — EXISTENCE OF INDEBTEDNESS. In an action upon a promissory note, in which the note is set out in haec verba in the complaint, the recital in the note, "For value received, I promise to pay," and the allegation in the complaint that "default has been made in the payment," constitute, by inference, a sufficient allegation of the existence of the indebtedness sued upon.
See 8 Am. Jur. 560.
Appeal from a judgment of the superior court for King county, No. 477327, James, J., entered February 11, 1955, upon sustaining a demurrer to the complaint, dismissing an action upon a promissory note and to foreclose a chattel mortgage. Reversed.
Yothers, Luckerath Dore and William H. Mullen, for appellant.
Rickles, Solomon Hurwitz, for respondents.
Plaintiff commenced this action for judgment of three hundred thirty dollars, the unpaid balance on a promissory note, and for foreclosure of a chattel mortgage given to secure the note. The defendants' demurrer to the complaint was sustained, and a judgment of dismissal was entered. The plaintiff appeals.
[1, 2] The Washington rule is that a complaint is not demurrable where facts substantially constituting a cause of action are alleged or are reasonably inferable from the language used. Allegations of ultimate facts and conclusions of law are good against a gejeral demurrer. Objections to the form rather than the substance of the pleadings must be interposed by motion to make the averment more definite and certain. See McHenry v. Short, 29 Wn.2d 263, 186 P.2d 900.
[3] The respondents contend the complaint does not state a cause of action, because it does not allege that appellant is the holder of the promissory note in question. The note, which is set out in haec verba in the complaint, designates the appellant as the payee. When the payee of a promissory note brings an action thereon, there is a reasonable inference that he is the holder thereof.
[4] The respondents contend that because the last installment on the note was due June 25, 1954, the verification of the complaint on January 8, 1954, was fatally premature. We do not agree. From the face of the note, it appears that at least ten installments were past due at the time of the verification.
[5] Respondents contend that the complaint fails to aver that the debt was due and owing to appellant, and that this defect is fatal to the statement of the cause of action. The promissory note recites, "FOR VALUE RECEIVED, I promise to pay," and the complaint alleges that "default has been made in the payment." This, by inference, is a sufficient allegation of the existence of the indebtedness sued upon.
While the judgment must, for the reasons indicated, be reversed, the court desires it to be known that it regards this appeal as an unjustifiable use of appellate judicial process. Only a slight amendment of the complaint would have been required to conform to the erroneous ruling on the demurrer. This amendment could have been made by appellant without prejudice to himself. It follows that the appeal was wholly unnecessary.
The judgment is reversed. Costs on this appeal shall abide the result of the action.