Richards

Defendant appeals upon the judgment-roll from a judgment for plaintiff, the point made by appellant being that the demurrer to the first, fifth, and seventh counts of the complaint should have been sustained.

The complaint contains several different counts. In each count there is an averment of an indebtedness of the appellant to a certain person upon a contract, and an assignment by such person of the alleged cause of action to respondent. In each of the counts, except the first, fifth, and seventh, there is an averment that the amount claimed “has not been paid, or any part thereof”; *643 but in the first count the only averment on the subject of nonpayment is that “there is now due and owing from said defendant to the said plaintiff” a certain stated amount; in the fifth count the only averment is that “there is now due,” etc., and in the seventh count the averment also is that “there is now due,” etc. It has been settled in this state by a long line of decisions, from Frisch v. Caler, 21 Cal. 71 , to the very recent case of Ryan v. Holliday, 110 Cal. 335 , that in an action to recover money upon a contract “the failure to pay constitutes the breach, and must be alleged,” and…