Roberts v. Treadwell

Complaint on Contract to Pat Monet.—In an action on a contract to pay money, the complaint must allege that the defendant has not paid the indebtedness for the recovery of which the action is brought. An allegation that the whole thereof is now due, is not sufficient.

Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco. The complaint averred that the plaintiff., at defendant’s request, sold Doane a ten-stamp battery for eight hundred and fifty dollars, and that defendant made and delivered to the plaintiff the following instrument: “ San Francisco, August, 1872. “S. P. Doane, having bought of G. D. Roberts, a ten-stamp battery, at Whisky Diggings, and agrees to pay therefor the sum of eight hundred and fifty dollars, in four equal installments, every three months from this date, I hereby guarantee that the said payments shall be promptly made as above. (Signed) “L. L. Treadwell.” It then averred that Doane had not paid the money or any part thereof, and that the whole was due. The defendant demurred because the complaint did not state facts sufficient to constitute a cause of action in this, that it did not state that the defendant had not paid the demand. The court overruled the demurrer, and rendered judgment by default for the plaintiff. The defendant appealed.