Opinion
Rehearing Denied May 29, 1930
Hearing Granted by Supreme Court June 26, 1930.
Appeal from Superior Court, City and County of San Francisco; George H. Cabaniss, Judge.
Action by the San Francisco Iron & Metal Company against Nathan Abraham and others. From an order discharging an attachment, plaintiff appeals.
Affirmed.
COUNSEL
Louis E. Goodman, of San Francisco, for appellant.
Bianchi & Hyman, of San Francisco, for respondents.
OPINION
STURTEVANT, J.
This is an appeal by the plaintiff from an order made discharging an attachment. On the hearing of the motion the parties introduced in evidence the plaintiff’s verified complaint, its affidavit for an attachment, its undertaking, plaintiff’s verified amended complaint, defendants’ notice of motion to discharge, defendants’ affidavit, and the affidavit of L.H. Silberman, the vice president of the plaintiff.
From the foregoing papers the following facts appear: Prior to November 1, 1926, N. Abraham was the owner of a store and doing business under the name of N. Abraham & Co. On that date Lou H. Silberman and Harry Silberman, as the agents of plaintiff, and N. Abraham formed a partnership and thereafter conducted the business of the store under the name of N. Abraham Mercantile Company. As for the contribution of the new partner or partners, the plaintiff paid into the funds of the copartnership $60,093.31. The new firm continued to transact business until the 1st day of December, 1927. At that time it was in financial embarrassment and the defendant proposed to give or take. By agreement of the parties, the defendant transferred to the plaintiff all of his interest and the plaintiff assumed all of the obligations of the partnership, but by the terms of the dissolution agreement no sum of money was stipulated as payable from either party to the other. The plaintiff’s complaint is in two counts. The first count specifically pleads a cause of action as for deceit. The second count pleads a cause of action as for moneys had and received. It was stipulated at the trial that both counts are but different methods of pleading one transaction. It nowhere appears that the plaintiff rescinded the partnership contract, offered to rescind it, nor, even at this time, offers to place the defendant in statu quo.
The foregoing facts show that the plaintiff’s grievance is a tort and under our statute it was not entitled to an attachment. Code Civ.Proc. § 537; Hallidie v. Enginger, 175 Cal. 505, 509, 166 P. 1. Moreover, searching the entire record, nothing appears showing any contract under which the defendant became indebted to the plaintiff "*** upon a contract express or implied, for the direct payment of money. ***" Code Civ.Proc. § 537; Willett & Burr v. Alpert, 181 Cal. 652, 662, 185 P. 976; Sturtevant v. K. Hovden Co., 60 Cal.App. 696, 698, 214 P. 244; Cal. Packing Corp. v. Kato, 45 Cal.App. 491, 493, 188 P. 57.
The plaintiff points to the count as for money had and received, asserts that count sounds in contract, and therefore claims that in any event it was entitled to take out a writ of attachment. In making this claim it is assuming that the court is passing on a demurrer, whereas the proceeding before the court is a motion to dissolve an attachment. The question is not what the plaintiff has pleaded, but what in truth and in fact is its grievance. The count for moneys had and received was evidence on the issue before the court, but no more conclusive than any other item of evidence before the court. The plaintiff’s complaint on the hearing of the motion before the court stood as an affidavit. Jacobs, Malcolm & Burtt v. Railway Co., 71 Cal.App. 42, 44, 234 P. 328. That is, the hearing on the motion before the court was similar to a hearing on a motion to dissolve an injunction. That the plaintiff’s verified pleading stands as an affidavit on a motion to dissolve an injunction is made clear by the authorities. Falkinburg v. Lucy, 35 Cal. 52, 60, 61, 95 Am.Dec. 76; Hefflon v. Bowers, 72 Cal. 270-272 13 P. 690; Hiller v. Collins, 63 Cal. 235, 237; Christopher v. Condogeorge, 128 Cal. 581, 585, 61 P. 174. Moreover, by pleading the count in assumpsit the plaintiff waived the tort and affirmed the original contract. But by the terms of that contract the defendant never bound himself to repay to the plaintiff the amount of its expenditures. Bechtel v. Chase, 156 Cal. 707, 711, 712, 106 P. 81. Therefore it was not entitled to a writ of attachment. We think that the trial court was clearly right in making the order dissolving the attachment.
The order is affirmed.
We concur: NOURSE, P.J.; BURROUGHS, Justice pro tem.