The opinion
TEMPLE, J., concurring.
I concur. Considering the phrase “this note is secured by mortgage of even date herewith” as a mere recital, it is still
prima facie
evidence of the fact stated as against the payee, but I think the phrase is something more than a mere recital. It is a part of the stipulation in the contract. A clause which substantially changes the nature of the obligation, and which binds the obligor to do something different from what he would be bound to do but for such clause, must be considered a part of the contract as distinguished from a mere recital. If this he not so, it would be difficult to state what the difference is.
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Without this clause the note would he an absolute agreement to pay fourteen hundred dollars. Inserting the clause it ceases to be an agreement to pay fourteen hundred dollars, but is an agreement that a certain special fund shall suffice to pay it, and if after that fund has been so applied there is a deficiency, the obligor will pay such deficiency.
(Biddel v. Brizzolara,
64 Cal. 354 ;
Brown v. Willis,
67 Cal. 235 ;
Powell v. Patison,
100 Cal. 236 ;
McKean v. German-American Bank,
118 Cal. 336 ;
Woodward v. Brown,
119 Cal. 283 ;
Savings Bank v. Central Market Co.,
122 Cal. 28 .)
The contract sued upon when introduced as evidence showed upon its face that a personal action could not be brought upon it. It may be said that this position is inconsistent with the views expressed upon the former appeal. But the position here taken was not presented to the court on that appeal and was not discussed. I think the court in that case, however, did not intend to overrule a long line of decisions which hold that where an agreement is unambiguous it may be pleaded by setting it out
in haec verba. (Stoddard v. Treadwell,
26 Cal. 294 ;
Love v. Sierra Nevada Lake Water etc. Co.,
32 Cal. 649 ; 91 Am. Dec. 602 ;
Hallock v. Jaudin,
34 Cal. 167 ;
Joseph v. Holt,
37 Cal. 253 ;
Murdock v. Brooks,
38 Cal. 596 ;
Lambert v. Haskell,
80 Cal. 613 ;
Stow v. Schiefferly,
120 Cal. 609 .)
The matter is very fully discussed in
Lambert v. Haskell, supra.
Speaking of the objection in that case the court said: “The objection goes, in effect, to the long existing and well-established practice of pleading by setting forth in full the instrument upon which the action or defense is founded. For there can be no difference between setting forth such instrument in the body of the pleading and making it a part of the pleading by proper reference. In each case the copy is part of the pleading.” This, it is said, is the better mode of pleading. But this does not obviate the necessity of alleging the necessary preliminary facts, even though they are recited in the written instrument. “Whatever may be the effect of such' recitals as evidence, they cannot serve as allegations of pleading.” In that case the necessary preliminary allegations were made and the undertaking sued upon was made an exhibit to the complaint and by reference incorporated into it. “This was a
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sufficient showing of the terms of the contract, 'and the condition upon which their liability was to arise/ ” The contract sued upon, as contradistinguished from mere recitals contained in it, was part of the pleadings.
This is, I presume, what was intended by the decision referred to, and as I have stated, the point that .the clause was a substantial part of th'e contract sued upon was not suggested. Ho one, then, claimed that it was so. Had such been the contention I am sure the result would have been different.