75 P. 653 | Cal. | 1904
Motion to discharge the writ of attachment issued in the cause. It appears from the complaint that plaintiff leased a piece of land in San Francisco with a view to erecting a building thereon in which to conduct its business; in January, 1900, plaintiff began negotiations with defendants for the necessary structural steel required for the building, and defendants submitted two lists of prices — one for delivery in February, 1900, and the other for May delivery, the former calling for a higher price than the latter; that plaintiff informed defendant at this time that it had leased the lands on which the building was to be erected, and would have to pay the rental of fourteen hundred dollars per month from and after July 1st, and that it was necessary for plaintiff to complete and occupy the building by that time, but that it could not be then completed and occupied unless the steel should be all delivered during the month of February; that accordingly defendants agreed to make delivery in that month, and plaintiff, in consideration of the earlier delivery, agreed to pay the higher price, amounting to a difference of something over four thousand dollars; that plaintiff performed all the conditions of the contract on its part, but defendants did not deliver the steel until in April, by reason of which failure *137 the construction of said building was delayed three months. The alleged damages grew out of this delay, and are made up of the following items: 1. Ground-rent of fourteen hundred dollars per month for three months; 2. Interest on money expended by plaintiff in the building outside of the steel work during the period of the delay, amounting to $396.32; 3. The value to plaintiff of the use of the building for three months, alleged to be three thousand dollars per month, or nine thousand dollars; and 4. The amount expended by plaintiff in preparing the steel for use after its receipt, $377.65, the alleged agreement being that it should be delivered in complete condition for being placed in the building. The total amount claimed in the complaint is $13,973.97, for which judgment is prayed. The affidavit for attachment sets forth: "That the defendants in said action are indebted to plaintiff in the sum of twelve thousand three hundred and seventy-eight and 29-100 dollars ($12,378.29) over and above all legal set-offs and counter-claims upon an express contract, to wit: an agreement to deliver for a consideration, during the month of February, 1900, all steel work to be used in the construction of a certain building to be erected by plaintiff in the city and county of San Francisco, state of California; that defendants both reside in the state of New York, and neither of them resides in the state of California; that this attachment is not sought, and this action is not prosecuted to hinder, delay, or defraud any creditor or creditors of defendants." The amount of indebtedness stated in the affidavit and in the writ is the same, and is $1,595.68 less than the amount claimed in the complaint, and it is to satisfy this lesser amount stated in the affidavit the writ directs the sheriff to attach the property of defendants. In the complaint it was stated "that the use, benefit, and occupation of said building is worth to plaintiff the sum of three thousand ($3,000) dollars for each and every month." While the motion was pending and before the decision thereon, plaintiff moved and was permitted, without objection so far as appears, to strike out the above quoted allegation and insert in lieu thereof the words, "that the use, benefit, and occupation of said building are reasonably worth the sum of three thousand ($3000) dollars for each and every month."
Section 537 of the Code of Civil Procedure provides that *138
the plaintiff may have the property of the defendant attached: . . . "2. In an action upon a contract, express or implied, against a defendant not residing in this state," and in such case the affidavit need only state: . . . "2. That the defendant is indebted to the plaintiff [specifying the amount of such indebtedness over and above all legal set-offs or counterclaims], and that the defendant is a non-resident of the state; and 3. That the attachment is not sought, and the action is not prosecuted, to hinder, delay, or defraud any creditor of the defendant." (Code Civ. Proc., sec. 538.) As to the meaning of the words "for the direct payment of money," found in subdivision 1 of sections 537 and 538, we need not concern ourselves, for they relate only to defendants who are residents of the state. Upon a motion to dissolve an attachment against the property of non-residents it is only necessary that the complaint should show that the action is upon a contract, express or implied, and that the affidavit should state the facts pointed out in the above paragraphs of section 538. If the complaint sets forth a cause of action upon a contract, express or implied, it cannot be attacked for ambiguity or uncertainty, and not even whether it states a cause of action if it appear therefrom that it can be so amended as to state a cause of action upon contract; in other words, the motion cannot be turned into a demurrer to the complaint. (Kohler
v. Agassiz,
It is objected by appellant that the writ is defective because the amount necessary to satisfy plaintiff's demand is not "stated in conformity with the complaint," as required by section
The point most urged is whether such damages as are claimed here for breach of contract can be made the basis of an attachment. Appellant relies on Dunn v. Mackey,
The further point is made that it appears from the complaint that plaintiff has performed all its agreements, and this operates a satisfaction and discharge of the contract; that the contract being discharged there is no longer anything for the attachment to rest upon, and plaintiff cannot now recover for the delay in the delivery. Gaylord Mfg. Co. v. Allen, *141
No question arises here as to the unfitness or inferior quality of the steel when delivered, unless it may be as to the small item for damage for labor in preparing the steel for use. Whether the rule stated in the cases cited would apply where the goods delivered are in kind and quality according to contract, and the damages arise only from delay in delivery, under the circumstances of this case as disclosed by the complaint, may be doubted, but it is not necessary to decide the question. There is nothing in the general allegation that plaintiff has performed on his part, etc., which necessarily shows or from which it may be implied that plaintiff intended to discharge the contract or defendants' liability under it, nor indeed can we assume that defendants will, when they answer, make any such defense. As already stated, the writ cannot be turned into a demurrer to the complaint. (Kohler v. Agassiz,
The order should be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order appealed from is affirmed.
McFarland, J., Lorigan, J., Henshaw, J.