Poirier v. Gravel

Citations

• 88 Cal. 79
• 25 P. 962
• 1891 Cal. LEXIS 647

Syllabus

<p>Consideration of Written Instrument — Evidence — Burden of Proof. — A written instrument is presumptive evidence of a consideration, and the burden of showing a want of consideration sufficient to support it is upon the party seeking to avoid it.</p> <p>Id. —Pleading — Recital in Complaint — Surplusage. — A recital in the complaint, in an action upon a written instrument, that the defendant, “ being indebted, ” executed it, is unnecessary, and may be rejected as surplusage.</p> <p>Contract —Agreement to Pay from Products of Land — Breach — Sale of Land — Pleading. — A complaint for breach of a contract to pay a sum of money in installments, when realized from the products of certain land owned hy the defendant, which alleges the contract, and a sale and conveyance by the defendant to others of the land and products, and that the defendant had not paid a part of the money which she . agreed to pay, sufficiently states a breach of the contract.</p> <p>Id.—Impossibility of Performance — Voluntary Breach—Demand — Maturity of Cause of Action. — If one voluntarily puts it out of his power to do what he has agreed, he breaks his contract, and is immediately liable for the breach, without demand, even though the time specified for performance has not expired.</p> <p>Judgment by Default — Order Refusing to Vacate—Conflicting Affidavits — Appeal. — An order refusing to vacate and set aside a judgment by default on the alleged ground of mistake and inadvertence of the defendant will not he reversed on appeal, where the affidavits used on the hearing of the motion are conflicting as to whether the defendant’s failure to answer in time did arise from mistake, inadvertence, or excusable neglect.</p>