Ryan

The judgment in this case must be reversed for want of any averment that the note secured by the mortgage sought to be foreclosed has not been paid. The only allegation in this regard is:

This is not the equivalent of an averment of nonpayment. The language, “ There is now due,” etc., is but a conclusion of law and not the averment of a fact. The breach of the contract to pay is of the essence of the cause of action and must be alleged. (Frisch v. Caler, 21 Cal. 71 ; Scroufe v. Clay, 71 Cal. 123 ; Roberts v. Treadwell, 50 Cal. 521 ; Barney v. Vigoreaux, 92 Cal. 631 .) The fact that no demurrer was interposed and that judgment went by default makes no essential difference, since the defect goes to the statement of a cause of action (Barney v. Vigoreaux, supra); and that defect is not waived by a failure to demur. (Code Civ. Proc., sec. 434.)

While we are reluctant, as suggested in Notman v. Green, 90 Cal. 173 , to reverse a judgment upon such a technicality, and especially in favor of a defendant who has apparently stood by and permitted the court below to overlook an error, susceptible of easy correction, *338 and then takes advantage of such error on appeal; and while we would…