Form No. 786. .... .... 1381 1382 1382 Form No. 783. Defense of alteration of instrument. (In gen- Form No. 788. Action upon guaranty of drafts with bills of Form No. 791. Denial of acceptance, presentment, and protest 1393 1394 .... Form No. 793. Denying excuse for non-presentment.. 1394 Form No. 794. Denial of notice... 1394 Form No. 795. Counterclaim in action upon promissory note.. 1394 § 346. Annotations 1396 § 344. COMPLAINTS [OR PETITIONS]. FORM No. 735-By first endorsee against maker. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: made his promissory note in writing, dated on that day, and thereby promised to pay to the order of one C. D. $ after said date. months 2. That the said C. D. thereafter endorsed the said note to the plaintiff, and that the plaintiff is now the owner and holder thereof. 3. That the said sum has not been paid, nor any part thereof [except the sum of, etc.], and that the whole thereof [or state, if a portion] remains due and payable from the defendant to the plaintiff. [Concluding part.] FORM No. 736-By subsequent endorsee against maker. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of execution of note.] 2. That the same was thereafter endorsed by the said C. D. and one E. F. and one G. H., and thereby transferred to the plaintiff, who became, and now is, the owner thereof for value. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 737—By first endorsee against first endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of execution of note.] day of 2. That then and there [or thereafter] the defendant endorsed said note to the plaintiff, who is now the owner and holder thereof. 3. That on the 19 said note was duly presented for payment, and payment thereof demanded, but the same was not paid; that due notice of the said non-payment thereof was given to the defendant. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 738-By subsequent endorsee against immediate endorser. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: his promissory note in writing, dated on that day, and thereby promised to pay to the order of E. F., $ days after said date. 2. That the said E. F. thereafter endorsed the said note to the defendant, and the defendant endorsed the same to the plaintiff for value, and plaintiff is now the owner and holder thereof. 3, 4. [Same as paragraphs 3 and 4, form No. 737.] [Concluding part.] FORM No. 739-By subsequent endorsee against first endorser. [Title of court and cause.] 1. That on the The plaintiff complains of the defendant, and alleges: his promissory note in writing, dated on that day, and thereby prom ised to pay to the defendant, or order, $ said date. months after 2. That then and there [or thereafter] the defendant endorsed said note to one E. F., who thereafter by endorsement transferred the same to the plaintiff for value. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 740-By subsequent endorsee against all prior parties. [Title of court and cause.] The plaintiff complains of the defendants, and alleges: Y. Z. made his promissory note in writing, dated on that day, and thereby promised to pay to the order of the defendant W. X. $ months after said date. 2. That the said W. X. endorsed the said note to the defendant U. V., who endorsed the same to the plaintiff for value, and that the plaintiff is now the owner and holder thereof. day of 19 the same was duly pre 3. That on the sented to the said Y. Z. for payment, but it was not paid, due notice of which was given to W. X. and U. V. [Or, aver excuse for nonpresentment.] 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 741-On note wrongly dated. [Title of court and cause.] 1. That on the The plaintiff complains of the defendant, and alleges: day of 19 at , the defendant made and delivered to the plaintiff his promissory note in writing, of which the following is a copy: [Copy of note.] That by mistake said note was made to bear date on the day of 19, instead 19 which latter date was in truth 2. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 742-On sight note. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of execution of note.] was duly presented to the defendant [maker], with notice that payment was required according to its terms. 3. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 743-By domestic corporation, payee, against foreign corporation. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. [Allegation of incorporation of plaintiff.] 2. That the defendant is a corporation, duly chartered by and under the laws of the state of pursuant to an act of the legislature of said state entitled [give title of act], passed [give date of enactment]. day of 19 at 3. That on the , the defendant. as such corporation, by its agent duly authorized thereunto, made its promissory note in writing, dated on that day, and thereby promised to pay to the order of the plaintiff, under its corporate name of $ months after said date. A copy of said note is hereto annexed, marked “Exhibit A,” and made a part of this complaint [or petition]. 4. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 744-By payee as receiver against partners. [Title of court and cause.] The plaintiff complains of the defendants, and alleges: 1. That heretofore the defendants, under their firm name of Y. Z. & Co., made their promissory note in writing, dated the day of 19 and thereby promised to pay to the plaintiff, as such receiver [or his order], $ months after said date. 2. [Same as paragraph 3, form No. 735.] [Concluding part.] FORM No. 745-By partners on note payable to firm. [Title of court and cause.] The plaintiffs complain of the defendant, and allege: 1. [Allegation of copartnership.] made and delivered to the plaintiffs his promissory note in writing, and thereby promised to pay them under their firm name of A. B. & Co. [or their order], $ months after said date [or on FORM No. 746-By payee against surviving partner. [Title of court and cause.] The plaintiff complains of the defendant, and alleges: 1. That at the time of the making of the note hereinafter mentioned, the defendant and one W. X. were partners, carrying on business under the firm name of Y. Z. & Co. 2. That on the day of 19 at they made, under said firm name, their promissory note in writing of that date, a copy of which is as follows: [Insert copy.] day of 19 at the said W. X. 3. That on the died, leaving the defendant the sole surviving partner of said firm. 4. [Same as paragraph 3, form No. 735.] Wherefore, the plaintiff prays judgment [etc.]. FORM No. 747-Averments as to partnership promissory note endorsed to plaintiffs. 1 (In Hallock v. Jaudin, 34 Cal. 167, 168.) 1 [Title of court and cause.] The plaintiffs complain of the defendants, and allege: 1. That on the 15th day of August, 1866, the defendants [E. Jaudin and G. Kennedy were, and during all the times herein mentioned have been, copartners doing business under the firm name of E. Jaudin & Co.]; that on said date defendants, as such copartners, 1 While the complaint (omitting the bracketed portions) in Hallock v. Jaudin, supra, was held sufficient as against a demurrer, the court says that the same would have been more artistic and logical if it had alleged in the body of the complaint that the defendants were copartners in business at the time the note was made, and that the firm made it, and further that the complaint avers a promise to pay. (Under the existing California statute, a promise to pay is implied by the written instrument itself, as the same imports a consideration. See section 1614 of Kerr's Cyclopedic Civil Code of California and notes, and see Henke v. Eureka Endowment Assn., 100 Cal. 429, 432, 34 Pac. 1089. The portion of the complaint appearing in brackets corrects the remaining defects pointed out in the decision.) |
