Whitwell v. Thomas

Citations

• 9 Cal. 499

Syllabus

<p>Whore a complaint in an action on a promissory note executed by two defendants, averred that the defendants were partners, and that the note was executed by them, and the answer simply denied that the defendants were partners, and did not deny that they executed the note: Held, that the averment of partnership was immateral, and that plaintiff was entitled to judgment on the pleadings.</p> <p>The execution of the notes, not the copartnership of the defendants at the time, constituted the material averment.</p> <p>The test of the materiality of an averment in a pleading is this: could the averment be stricken from the pleading without leaving it insufficient ?</p>