Rivera v. Cappa , 29 Cal. App. 496 ( 1916 )

The petition for a rehearing is denied.

The opinion of the district court of appeal states that "it seems to be the rule in this state that a general averment that the note or contract sued on was executed without any consideration whatever," does not state a good defense, because an averment in that form states a mere conclusion of law.

The only one of the cases cited upon this proposition which appears to support it is Gushee v. Leavitt, 5 Cal. 160, [63 Am. Dec. 116]. The court in that case was unfortunate in its mode of expression. In view of the well-established rule that an answer which avers, in so many words, that the note sued on was executed without any consideration whatever, states a good defense (9 Cyc. 738), it is hardly to be supposed that the court there intended to decide the contrary. The context shows, however, that what the court really intended to declare was the equally well-established rule that general allegations that the note was obtained by fraud are not sufficient, but that the facts constituting the fraud must be set forth.

Sloss, J., Lawlor, J., Melvin, J., and Angellotti, C. J., concurred.