California Supreme Court, 1886

Scroufe v. Clay

Scroufe v. Clay
California Supreme Court · Decided September 28, 1886
71 Cal. 123; 11 P. 882; 1886 Cal. LEXIS 538
Scroufe v. Clay

Cases that cite this one

14 later published cases cite this decision.

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Opinion of the Court

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 *124that 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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.