(dissenting) :
I dissent. The defendants’ motion, made at the opening of the -trial to "dismiss the complaint, should have been granted, and they .could-not be deprived, without .their consent or acquiescence, of their (.exception to the refusal to dismiss, by the court’s subsequently conforming the pleadings to the proof. ■
The complaint should have been dismissed, because the facts -therein stated did not constitute a cause of action against the •defendants. The Code of Civil-Procedure provides (§ 481) that a ■complaint must contain a plain and concise statement of the facts .constituting the cause of action. This provision is a wise one. The purpose to be accomplished hy it is manifestly to apprise the defendant in advance of the trial of what the plaintiff intends to prove, in order that a proper defense may be made, and it necessarily fol*369lows that whatever facts are necessary to be proven upon the trial to entitle the plaintiff to recover must be alleged in the complaint. Otherwise, there is no meaning to the section and a complaint serves no useful purpose. Here the complaint did not state a cause of action for the reason that there was no allegation in it, or the statement of any fact from which an allegation to that effect could be inferred, that the firm of Sardy, Coles & Co. was indebted to the plaintiff in any sum whatever.. AH'that the complaint stated upon the subject of an indebtedness was that “ On or about the 31st day of August, 1891, this plaintiff loaned to the defendants John L. Sardy and John Bard Rogers, composing the copartnership firm of Sardy, Coles & Co., the sum of $3,000, for which said firm gave its demand note secured by its pledge or agreement to make a pledge to this plaintiff” of certain described goods. It is true, as stated in the prevailing opinion, that a copy of the note referred to was annexed to the complaint, but there was no allegation that the plaintiff was then owner or holder of the note, or that it had not been paid, of that the firm of Sardy, Coles & Co. was, at the time the action was brought, indebted to the plaintiff in any sum whatever. If this were an action at law to recover the amount of the note, it could not be seriously contended but that the complaint would have been fatally defective in that it failed to allege non-payment. In such case the failure to pay according to the terms of the contract would be the basis of plaintiff’s right to recover. (Lent v. N. Y. & Mass. R. Co., 130 N. Y. 504; Witherhead v. Allen, 4 Abb. Ct. App. Dec. 628; Van Giesen v. Van Giesen, 10 N. Y. 316.)
In the Lent Case (supra) the court said: “ It does not admit of controversy that, upon an ordinary contract for the payment of money, non-payment is a fact which constitutes the breach of the contract, and is the essence of the cause of action and, being such within the rule of the Code, it. should be alleged in the complaint.” And in Witherhead v. Allen (supra): “ When the action is founded upon a contract obligation or duty, the very gist and essence of the ■cause of action is the breach thereof by the defendant, and unless the breach is alleged no cause of action is shown; ” and in Van Giesen v. Van Giesen (supra): “ The material allegations of the complaint in this case are, the making by the defendants of the promis*370sory note, the transfer of it to the plaintiff and the nompa/yment of it by the defendants.' Each of them is material, for without the concurrence of all of them the complaint would not show a cause of action.” Manifestly not only under the plain and obvious meaning of the section of the Code referred to, but under the authorities-cited, in an action to recover upon the note itself, it would be necessary for the plaintiff to allege and prove non-payment. If I am' right in this conclusion, then it necessarily follows, as it seems tome, in an equitable action brought to establish a pledge of personal-property given to secure payment of the note, and to foreclose the pledge, that the fact of non-payment of the note must be alleged-in the complaint and proved upon the trial. It cannot be otherwise, because the breach of the contract to pay the note is of the essence of the cause of action. It is the basis of plaintiff’s right to proceed in equity. It is the fact which gives it standing in court. Payment of the note would, ipso facto, satisfy the pledge and destroy any right which the plaintiff theretofore had to proceed in equity. It follows, therefore, that non-payment of the note must be alleged in the complaint, and the plaintiff having failed to allege that fact, the complaint should have been dismissed. (Ryan v. Holliday, 110 Cal. 335.) It is unnecessary to pass upon the other questions raised.
. For these reasons I cannot concur in the opinion of Mr. Justice Patterson. I think the judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.
Judgment affirmed, with costs.