Dysert v. Weaver , 46 Cal. App. 576 ( 1920 )

This is an action upon a promissory note executed by defendants. Plaintiffs are the payees named in the note.

[1] Upon the trial, when plaintiffs sought to introduce their evidence, defendants objected upon the ground that the complaint does not state a cause of action. It is claimed that there is no sufficient allegation of nonpayment. The complaint alleges that "ninety-one dollars and eighty-seven cents ($91.87), the interest on said promissory note to October 7, 1916, has been paid, and that no other or further sum has been paid thereon." Appellants contend that the word "thereon" modifies the word "interest," and that this allegation amounts to no more than an averment that no more has been paid on theinterest than ninety-one dollars and eighty-seven cents. We cannot assent to this construction of the plain and unambiguous language of the complaint. We think it quite clear that the word "thereon" refers to the words "promissory note," and that the allegation is equivalent to an averment that all the interest that accrued up to October 7, 1916, has been paid, and that no other or further sum has been paid on the note.

[2] There is no merit in the contention that the complaint should have alleged that plaintiffs are the "owners and holders" of the note. In an action by the payee against the maker it is sufficient to allege the execution and delivery of the note to plaintiff, without alleging that he is the owner and holder. It will be presumed that the payee of a note, in possession thereof, is the owner. (Bank of Shasta v. Boyd,99 Cal. 604, [34 P. 337]; Locke v. Klunker, 123 Cal. 231, 239, [55 P. 993]; Yellow Jacket etc. Co. v. Holbrook, 24 Cal.App. 687, [142 P. 128]; 8 C. J., p. 886, title "Bills and Notes," par. 1159.)

The appeal is wholly without merit. It is inconceivable that it could have been taken with any reasonable hope of success. Because the appeal is manifestly frivolous, appellants, we think, should pay respondents such damages as may be just. We consider one hundred dollars a proper sum to be charged.

It is ordered that the judgment be affirmed, and that respondents recover of appellants the sum of one hundred dollars as damages.

Sloane, J., and Thomas, J., concurred.