If an affidavit for attachment is defective in not stating all the statute requires, or if it is false, the court has no jurisdiction to issue the writ. Wallace v. Perry, 74 Idaho 86, at 95, 257 P.2d 231; American Fruit Growers Inc. v. Walmstad, 44 Idaho 786, 260 P. 168; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669. If an affidavit for an attachment is defective in not stating all the statute requires, or if it is false, the court has no jurisdiction to issue the writ of attachment. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231; American Fruit Growers Inc. v. Walmstad, 44 Idaho 786, 260 P. 168; Mathews v. Densmore, 43 Mich. 461, 5 N.W. 669.
However, an uncertain amount of damages-to be conclusively determined at trial-does not warrant discharge of a writ of attachment. Wallace v. Perry, 257 P.2d 231, 235 (Idaho 1953) (“That the amount of recovery is uncertain and has to be proved does not defeat attachment”); see also Citizens Auto. Inter-Ins. Exch. v. Andrus, 212 P.2d 406, 411 (Idaho 1949)
Further, there is no evidence that the attachment is sought, or that the action is prosecuted, to hinder, delay, or defraud any other of defendants' creditors. Wallace v. Perry, 257 P.2d 231, 233 (Idaho 1953); see also, Smith v. Smith, 511 P.2d 294 (Idaho 1973) ("The substance of an action for unjust enrichment lies in a promise, implied by law, that a party will render to the person entitled thereto that which in equity and good conscience belongs to the latter."); Hixon v. Allphin, 281 P.2d 1042, 1045 (Idaho 1955) ("The essence of a quasi contractual obligation lies in the fact that defendant has received a benefit which it would be inequitable for him to retain."); Cont'l Forest Prods. v. Chandler Supply Co, 518 P.2d 1201, 1205-06 (Idaho 1974) (same). Next, regarding the $270,000 transfer to AAP Holdings on the day of the show-cause hearing, the circumstances and timing of this transaction indicate an actual intent to hinder, delay, or defraud.
United States District Court Wallace v. Perry, 257 P.2d 231, 233 (Idaho 1953); see also, Smith v. Smith, 511 P.2d 294 (Idaho 1973) ("The substance of an action for unjust enrichment lies in a promise, implied by law, that a party will render to the person entitled thereto that which in equity and good conscience belongs to the latter."); Hixon v. Allphin, 281 P.2d 1042, 1045 (Idaho 1955) ("The essence of a quasi contractual obligation lies in the fact that defendant has received a benefit which it would be inequitable for him to retain.
Under Idaho law, "[w]here money is advanced on the purchase price of goods, and the seller fails or refuses to deliver, a suit to recover the money advanced is an implied contract for the direct payment of money permitting the issuance of an attachment." B.J. Carney & Co. v. Murphy, 195 P.2d 339, 383 (Idaho 1948); see also Wallace v. Perry, 257 P.2d 231, 233-235 (Idaho 1953). In this case, Defendant made a progress payment of $357,062.40 to PSI for the fabrication and installation of two 200,000 gallon welded water storage tanks.
Such an action is based upon the tort of embezzlement, yet the action is one ex contractu , in which the plaintiff may have a writ of attachment." Wallace v. Perry , 74 Idaho 86, 257 P.2d 231, 233 (1953) (internal citations omitted). On the other, the Idaho Court of Appeals, in an unpublished decision, recently stated that "[e]mbezzlement is a criminal offense, Idaho Code § 18–2403 , and there is no civil tort of embezzlement.
This claim is within the contemplation of the statute requiring that the action be for the "direct payment of money." In Wallace v. Perry, 74 Idaho 86, 92, 257 P.2d 231, 235, this Court stated: "That the amount of recovery is uncertain and has to be proved does not defeat attachment. Eaton v. Queen, 78 Cal.App.2d 571, 177 P.2d 997, at page 999.
W. Prosser W. Keeton, The Law of Torts § 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211, 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel.American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment §§ 7-8 (1943).
W. Prosser W. Keeton, The Law of Torts S 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel. American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment SS 7-8 (1943).
W. Prosser W. Keeton, The Law of Torts § 94, at 672-73 (footnotes omitted). This doctrine has found directly pertinent application in holdings that the exclusion of tort actions from the operation of garnishment and attachment statutes does not apply to cases like this. Wallace v. Perry, 74 Idaho 86, 257 P.2d 231 (1953) (attachment lies for misappropriation of funds sued upon in implied contract for money had and received); Cleveland v. San Antonio Building Loan Ass'n, 148 Tex. 211, 223 S.W.2d 226 (1949) (writs of garnishment and attachment properly issued when claim for liquidated damages arises out of express or implied contract); State ex rel. American Piano Co. v. Superior Court, 105 Wn. 676, 178 P. 827 (1919) (attachment or garnishment lies for conversion of property arising from contract claim). See generally 38 C.J.S. Garnishment §§ 7-8 (1943).