SAMUEL MERRITT, Respondent, v. P. S. WILCOX, Appellant, 1 Cal. Unrep. 884

RHODES, J. — In an action on a contract for the payment of money the plaintiff may allege in the complaint that it was understood and agreed by and between the parties that payment should be made in a specified kind of money; and such allegation presents a material and issuable fact, and, if denied by the answer, must, like any other fact in issue, be proven. It in truth constitutes a material term of the contract.

The rule is well recognized that a general verdict— that the plaintiff recover a certain sum of money — is construed as a finding in favor of the plaintiff upon all the issuable facts stated in the complaint.

No sufficient reason was suggested at the argument why the issue in question should be withdrawn from the operation of the general rule, nor do we perceive anything in the nature of that term of the contract, or in the allegation of that fact, as a matter of pleading which requires a construction to be given to the verdict differing in any respect from that which would be applicable in respect to any other issuable fact averred in the complaint.

We are therefore of the opinion that the court, without regard to the affidavits filed by the respective parties, was fully justified in amending the judgment so as to make the money payable in gold coin. Judgment and order affirmed. We concur: Crockett, J.; Niles, J.