1. In the petition for a rehearing it is urged that this court misconceived the position of appellant, *Page 576 which is that the complaint did not state a cause of action in failing to allege that the contract was in writing and in failing to allege any consideration for the agreement which it pleads that defendant entered into. Except for the petition for rehearing, it would have been regarded as unnecessary to say that no demurrer was interposed to the complaint, either general or special, and that the complaint does allege that plaintiff has always been ready and willing "to receive the said 56,000 boxes and to pay for them at the price called for by said contract and in accordance with the terms thereof." However defective this allegation might be regarded as an allegation of consideration under the attack of a special demurrer, in the absence of either general or special demurrer a cause of action is sufficiently stated. In Moore v. Waddle, 34 Cal. 145, discussion was had with reference to a demurrer which was therein interposed to the sufficiency of the complaint. It was pointed out that under the common-law rules of pleading a consideration was imported only to an instrument under seal. It was held that the contract sued upon was sealed, and that therefore the ground of demurrer was not well taken. The same is true of Acheson v. Western Union Tel.Co., 96 Cal. 641, [31 P. 583]. There, too, demurrer was interposed to the complaint. Here, as has been said, no demurrer was interposed to the complaint. There is an allegation in the complaint to the effect that plaintiff was to pay for the boxes "the price called for by the contract." There was therefore not an absence of allegation of consideration, but, at the worst, a defective allegation of consideration to which a special demurrer should have been but was not addressed.
2. Defendant for special defense pleaded the non-payment of the corporation license-tax. It offered no word of evidence in support of this defense, but argues upon appeal that because it tendered this defense it became incumbent upon the plaintiff to prove, upon its part, the payment of the tax, this in direct denial of the code declaration to the effect that while evidence need not be given in support of a negative allegation generally, it must be given "when such negative allegation is an essential part of the statement of the right or title on which the cause of action or defense is founded." (Code Civ. Proc., 1869.) Here was a defense wholly based *Page 577 upon the negative allegation of non-payment. It was incumbent upon the defendant to support such a defense by some evidence, and, from the nature of the defense such evidence was easily procurable. It is meaningless to cite cases where the courts have held as to certain negative averments that proof is not necessary. The code provision covers the whole matter. Byers v.Bouret, 64 Cal. 73, [28 P. 61], is not in point. The discussion there was not directed to the burden of proof. Issue was joined upon the plea in abatement that plaintiffs had not complied with the provisions of sections 2466 and 2468 of the Civil Code relating to partnerships and the court made findings thereon. The discussion in this court was upon the sufficiency of the findings to support the judgment. What is said as to the duty of the plaintiffs "to have shown that the certificate had been filed and published once a week for four successive weeks before the commencement of the action" had reference not at all to the burden of proof, but to the fact that by the evidence which they introduced they failed to establish a compliance with the law. As little in point is Sweeney v. Stanford, 67 Cal. 635, [8 P. 444]. There, upon its face, the complaint established that plaintiffs were partners doing business under a designation which did not show the names of the partners. This made it incumbent upon the plaintiffs to plead that they had filed a certificate as required by section 2468 of the Civil Code. They did so plead. The allegation as to the filing of the certificate was denied by the answer. The certificate which was offered in evidence did not comply with the statute. It was held that since the complaint established that plaintiffs were doing business as copartners under a designation which did not show the names of the partners, the allegation of compliance with the provisions of the code was essential to the sufficiency of the complaint, and that plaintiffs could not recover without proving it. In the present case no such question is involved. The same is true of Bank ofBritish North America v. Alaska Imp. Co., 97 Cal. 28, [31 P. 726]. The law required a foreign bank doing business in California to publish certain statements as a prerequisite to their right to maintain or prosecute any action or proceeding in any of the courts of the state. The answer averred that plaintiffs had not complied with certain provisions of that act. The court's findings were, in effect, that the *Page 578 plaintiffs had sufficiently complied with the law. Here, again, was no discussion of the burden of proof, this court determining merely that the evidence offered by plaintiff in support of the finding that it had complied with the law was insufficient and therefore reversed the judgment. It may thus be seen that not only are none of these cases in point. It may be added that the pleading of the special defense is wholly insufficient to show that a forfeiture was worked by failure to pay the license-tax. Manifestly, if a forfeiture did not result, plaintiff's corporate capacity still existed. The allegation of the defense is merely that the plaintiff has "wholly failed to comply with the provisions or any provisions of the act of the legislature" relating to the license-tax upon corporations and "has wholly failed to pay the license or any of the licenses required to be paid by the provisions of the said act." But a casual inspection of the act itself and of the decision of this court in KaiserLand and Fruit Co. v. Curry, 155 Cal. 638, [103 P. 341], will disclose to the legal mind that the forfeiture which destroys the corporate existence does not result from a failure to pay the license-tax, but results from a failure to pay the license-tax, coupled with the further fact "that the acts required to be performed by the secretary of state and the governor (proclaiming the forfeiture) shall have been performed in the manner required." (Kaiser Land and Fruit Co. v. Curry, 155 Cal. 654, [103 P. 347].) Without the performance of such acts the forfeiture does not result and the pleading is wholly insufficient by reason of its failure to aver their due performance.
The absence of merit in this petition is thus shown. Petitioner seems to have undertaken to supply this lack of merit by disrespectful vehemence.
It is therefore ordered that the petition for rehearing be denied and that the petition itself be stricken from the files of this court. *Page 579