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Form No. 783. Defense of alteration of instrument. (In gen

Form No. 786.

Form No. 787.

eral.)

.....

1381

1382

1382

Form No. 784. Defense based upon material alteration in note
by changing the name of the payor......... 1381
Form No. 785. Defense that note was given for losses sus-
tained by sale of "options on 'change," a ficti-
tious and gambling transaction
Defense of usury in making note.............
Defenses-(1) denials, (2) dishonoring of
drafts due to acts of plaintiff, (3) that value
of property was offset by value of drafts, (4)
payment, (5) wrongful diversion of surplus
money which should have been applied to
payment, (6) non-observance of instructions
and failure to enforce lien, (7) failure to de-
liver agreed security.-Action upon guaranty
of drafts with bills of lading attached...... 1383

Form No. 788. Action upon guaranty of drafts with bills of

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Form No. 791. Denial of acceptance, presentment, and protest 1393
Form No. 792. Denial of presentment

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 :

1. That on the day of , 19 , at , the defendant made his promissory note in writing, dated on that day, and thereby months

promised to pay to the order of one C. D. $

after said date.

,

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:

1. That on the

day of , 19 , at , one C. D. made 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.]

The plaintiff complains of the defendant, and alleges: 1. That on the

day of

,

19 , at , one C. D. made 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:

1. That on the

day of

,

19 at

,

,

the defendant 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.

,

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3. That on the day of 19 , the same was duly presented 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.]

The plaintiff complains of the defendant, and alleges: 1. That on the

day of

, 19 at

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,

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

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day of

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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.]

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was duly presented to the defendant [maker], with notice that pay

ment 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].

3. That on the day of , 19 , at , 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. Ζ.

& 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.]

2. That on the

day of

,

19 at

,

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the defendant made and delivered to the plaintiffs his promissory note in writing,

and thereby promised to pay them under their firm name of A. B. &

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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.

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under said firm name, their promissory note in writing of that date, a copy of which is as follows: [Insert copy.]

3. That on the

day of

,

,

19 at , the said W. X. 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.

(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.)

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