Opinion
Hearing Granted Feb. 10, 1960.
Opinion vacated 4 Cal.Rptr. 527.
Jerrell Babb, Los Angeles, for appellant.
Gralla 3 Gralla, Los Angeles, for respondents.
FOURT, Justice.
This is an appeal from an order dissolving a writ of attachment.
The complaint was in four counts. The first count in effect set forth that the plaintiff and the defendants entered into a written contract on July 23, 1957 wherein the The contract also provided that in the event the company did not comply with the terms of the agreement by starting and completing the work on time, then the agreement was to become null and void and no longer in effect and the purchaser was not to be liable for expense to the company unless otherwise agreed upon in writing. The plaintiff alleged that the defendants failed and refused to perform the conditions of the contract and listed 14 items wherein the defendants had particularly failed. The plaintiff further alleged that by virtue of such failure he had been damaged in the sum of $7,344. He alleged in addition thereto that by virtue of defendants' failure to perform the contract within the period specified he, the plaintiff, had been damaged because his business had been interfered with, that he had lost revenue and had been put to additional expense all of which amounts were unknown at the time of the filing of the complaint but that they would be ascertained and set forth at a later date.
The second count had to do with a written contract dated August 14, 1957, wherein the defendants agreed to perform certain electrical work at the plaintiff's establishment and provided that the work was to be completed by September 1, 1957. The contract price was $2,553.68. The plaintiff alleged that the work was not done in certain particulars and that because of such failure he, the plaintiff, was damaged in the sum of $13,719. He also claimed as in the first count an added amount which was not then determined for interference with his business, loss of revenue and added expenses.
The third count set forth that on November 6, 1957, the parties entered into a written contract wherein the defendants agreed in consideration of $1,500 paid by the plaintiff to defendants that the defendants would do certain work (carry out the contracts of July 23 and August 14) and that the plaintiff paid the $1,500 and that the defendants still refuse to perform the contract.
The fourth count sets forth that on October 1, 1957, the parties entered into an oral contract whereby the defendants were to install certain light fixtures in the plaintiff's premises, that after the installation of such fixtures by the defendants, the plaintiff was notified by the inspectors of the City of Los Angeles that no permit had been obtained for the installation of such fixtures and that the plaintiff would have to secure a permit for such and that plaintiff did apply for the inspection of such fixtures. The plaintiff demanded of the defendants that the permit be obtained and defendants failed to secure the same; that the costs of securing the permit and arranging for the inspection is $3,222 and that the plaintiff has been damaged in such amount.
The plaintiff then made an affidavit for an attachment against a resident on a printed form wherein he set forth that the defendants are indebted to him in the sum of $25,758 (presumably the total of the dollar damage specifically mentioned in the complaint which adds up to $25,785 and not $25,758) and that said amount was due '* * * upon an _____ contract, for the direct payment of money, to wit: Breach of Contract. * * *'
The defendants made a proper motion to dissolve the attachment upon the grounds that the attachment was not issued in conformity with the law. The motion was granted and the appeal was taken. We believe that under the circumstances of this case the motion was properly granted.
Section 537, Subdivision 1, Code of Civil Procedure, provides in part that the contract referred to must be 'for the direct payment of money' before the attachment will be issued. We look to the allegations of the complaint and to the other proceedings to determine what in truth and in fact is the grievance of the plaintiff.
There is no contention that there was an express contract by the defendants to In Willett & Burr v. Alpert, 181 Cal. 652, 185 P. 976, the court had under consideration a case where the defendant had contracted to deliver 600 tons of rails and had only delivered 425 tons. The plaintiff sued for damages. In considering the matter the court said, commencing at page 658 of 181 Cal. at page 978 of 185 P.:
'* * * It is obvious that the contract in this case, so far as the defendants are concerned is not an express contract for the direct payment of money. The contract was not one by which, according to its terms, the defendants were to pay money. They were to deliver certain personal property, including a certain quantity of rails, and the action is one for damages for their alleged failure to make a complete delivery.
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'The action, as we have said, is one to recover damages for a failure on the part of the defendants to execute completely their contract to deliver, along with other things, a certain quantity of rails, and it is well-nigh elementary that a common count will not lie to recover damages for the breach of an unexecuted contract, where the obligation breached is something other than the payment of money. The rule is thus stated in 5 Corpus Juris., pp. 1386-1388, with the citation of a large number of authorities (the italics are ours):
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'* * * But where, as in the present case, there is neither an entire failure of consideration nor a rescission of the contract so as to entitle the vendee to recover back his money, with the result that he is limited to his remedy of damages, or where there has been an entire failure of consideration and the vendee yet elects not to recover his money, but to recover damages, the action does not proceed upon any theory of the defendant having received money which he should return to plaintiff, and which the law can therefore imply a promise on his part to return, and so indebitatus assumpsit will not lie. If this distinction between actions for the recovery of money paid because of failure of consideration or of rescission resulting from a breach of contract, and actions for damages for a breach of contract be not sound, it would follow that indebitatus assumpsit would lie in every case of a breach of contract. Such is not the law.
'To recapitulate, it is plain in the present case that there is no express contract for the direct payment of money; it is also plain that there is no implied contract unless the law creates the fiction of one for the purpose of permitting an action upon a common count; and, finally, it is a well-settled rule that an action upon a common count will not be permitted in such a case as this, where there is an express contract to do something else than pay money and damages are sought because of the failure of the defendant to do that something else. It follows that the present action is not one in which the statute authorizes the issuance of an attachment. To hold otherwise would be simply to wipe out the statute and permit an attachment in every action for damages for a breach of contract, regardless of whether or not the contract be one for the direct payment of money.' See, also, Doud v. Jackson, 102 Cal.App. 213, 283 P. 107; California Packing Corporation v. Kato, 45 Cal.App. 491, 188 P. 57; Sturtevant v. K. Hovden Co., 60 Cal.App. 696, 214 P. 244; San Francisco Iron & Metal Co. v. Abraham, 211 Cal. 552, 296 P. 82.
There is no provision in any of the contracts in this case which in anywise expressly provides that the defendants will pay the plaintiff any money. With the possible exception of the third count there is nothing in any of the proceedings or in any of the contracts which by implication provides that the defendants shall pay the plaintiff money.
It is true that the joinder of an attachable cause of action with a non-attachable cause of action does not necessarily defeat the right of an attachment. Redwood Fibre Products Co., Inc. v. Miller Mfg. Co.,
There was no rescission of any of the contracts nor is there any claim of such. The plaintiff is not seeking the return of any money which he paid to the defendants but rather he is seeking damages because, as he claims, the defendants failed to perform their agreement.
We do not think that it can be implied in law or otherwise from what is before us that the defendants agreed to pay the plaintiff's damages as set forth in his complaint.
The judgment is affirmed.
PARKER WOOD, P.J., and LILLIE, J., concur.