Frisch v. Caler

Citations

• 21 Cal. 71

Syllabus

<p>In a complaint upon a promissory note an allegation of its nonpayment is material, and if omitted the complaint is demurrable. The averment that there is a certain amount due upon the note is insufficient, being a statement of a mere conclusion of law.</p> <p>A plea of payment in an a-nswer to a complaint upon a promissory note is not now matter, and was not, under the former practice requiring a replication to new matter, admitted by-a failure to reply.</p> <p>Where a negative allegation is necessary in stating the cause of action, although it must, of course, precede an averment hy the opposite party of the fact negatived, it nevertheless constitutes the basis of the issue joined by the subsequent averment, and the latter operates as a traverse and not as an averment of new matter.</p>