Lawrence National Bank v. Kowalsky

Citations

• 105 Cal. 41
• 38 P. 517
• 1894 Cal. LEXIS 1106

Syllabus

<p>Pleading—Complaint—General Demurrer.—Where a complaint is sufficient to sustain a judgment, although it may be carelessly drawn, a general demurrer is properly overruled.</p> <p>Id.—Argumentative Allegation of Assignment—Order upon Defendant—Account for Goods Sold and Delivered. —Where the complaint sets out an order or draft drawn upon the defendant by his creditor, payable to the order of the cashier of the plaintiff, and alleges that the claim of the creditor was for goods sold and delivered to the defendant, and the said draft was sold and delivered by said creditor to the plaintiff, and that he thereby assigned and transferred his claim against the said defendant, though it is informal and argumentative as to the fact of assignment of the drawer’s demand against the defendant for goods sold and delivered, is not wholly silent as to the fact of such assignment, and any defect in it can only be reached by a special demurrer, but the complaint states sufficient facts to support a judgment in favor of the assignee as against a general demurrer.</p> <p>Id.—Equitable Assignment—Intention of Parties.—An equitable assignment of a demand may be effected by means of an instrument having the form of an order or bill of exchange, drawn by the creditor upon the debtor for the full amount of the indebtedness, when such is the intention of the drawer and payee, and it is not essential that the intention to make such assignment should appear upon the face of the order or bill of exchange.</p> <p>Id.—Issue as to Assignment—Presumption in Favor of Judgment.— Where the answer presents an issue as to the assignment of defendant’s indebtedness from his creditor to the plaintiff it must be presumed upon appeal in support of the judgment that the fact-of such assignment was litigated upon the trial, and that the case was treated by the parties as involving that issue.</p>