Redwood Fibre Products Co. v. Miller Manufacturing Co.

Plaintiff appeals from an order dissolving an attachment levied on a small bank deposit and the undisclosed contents of a safe deposit box.

The writ was issued in an action to recover several sums of money, aggregating $8,782.80, claimed to be due plaintiff on account of the alleged breach of a contract of warranty involving the manufacture and sale by defendants of two

The essential facts alleged are as follows: For some time prior to March 5, 1941, plaintiff had been preparing to engage in the business of grinding and shredding redwood bark into bark wool, which it intended to place upon the market and sell for insulation purposes; but in order to do so profitably it was necessary to have two mills built which would be capable of turning out a minimum of 30 tons of bark wool each week. The defendant company operated a manufacturing plant in Modesto where it built grinding mills and machines of different types, and on March 5, 1941, as the result of negotiations between the officers of the two companies, which extended over a period of about three weeks, the defendant “assured and warranted to plaintiff,” so the complaint alleges, “that said defendant could and would build and manufacture two mills for the plaintiff, which would be in all respects fit and proper and suitable for the aforesaid purposes, and would do the aforesaid work satisfactorily and in the required volume, to-wit, that said mills would produce a minimum of at least one car, or 15 tons per week of the finished product, per machine, or a total of 30 tons per week, for a total price for the two machines of Fourteen Hundred ($1400.00) Dollars, plus sales tax; and

Continuing, the complaint alleges “that on or about the 7th day of March, 1941, the said offer and warranty was confirmed by defendant to plaintiff in writing. That on or about March 10, 1941, the plaintiff transmitted to defendant a written acceptance of the said offer and warranty and accompanied same with a down payment, or deposit of $300.00, as agreed”; that “on or about April 23, 1941, the said mills were delivered by defendant to plaintiff’s plant and coincident therewith, plaintiff paid to defendant the balance in full of the purchase price of said mills with sales tax.”

The complaint then goes on to allege that the mills were installed under the supervision of defendant’s mechanics and factory superintendent, and were set in operation about May 9, 1941, but that they “were never able to do the said required work”; that from May 9, 1941, up to October 1, 1941, defendant’s employees were “continually experimenting and tinkering with said mills” in an endeavor to make them do the required work, and that during that period defendant assured plaintiff that it would make them do the work and “would remedy all defects and deficiencies in said mills at its own expense”; “that on or about August 15, 1941, one of said mills became a complete wreck through its improper construction and unfitness for the required purpose, and said defendant offered to fix same at its own expense if it was returned to said defendant’s factory at Modesto, but after same was so returned by plaintiff, and on or about September 18, 1941, said defendant notified plaintiff that said mill would not be returned,at all except upon the condition that plaintiff pay an additional sum of $185.00 for repairing said mill, upon receipt of the mill; which demand was in express violation of said defendant’s aforesaid assurances and warranty. That on or about September 20, 1941, plaintiff

The remainder of the complaint is devoted to allegations of elements of damage plaintiff claims to have sustained as

We are of the opinion that under the terms of the contract as pleaded plaintiff was entitled to an attachment. All that is required by the provisions of the code section authorizing an attachment is that the action be one based on a contract calling for the payment of money, the word “direct” as used in said provision being deemed surplusage (McCall v. Superior Court, 1 Cal.2d 527 [ 36 P.2d 642 , 95 A.L.R. 1019 ]); and in the present ease, as will be noted, the contract as pleaded embodies an express promise on the part of defendant to pay to plaintiff a specific sum of money, to wit, the purchase price of the mills, in the event of a breach of the contract of warranty.

The fact that the action arose out of the alleged breach of a contract of sale does not take it out of the operation of the attachment statute, for as said in Force v. Hart, 205 Cal. 670 [ 272 P. 583 ], it is a well recognized rule of law in this state that an attachment will lie upon a cause of action for breach of contract where the damages are readily ascertainable by reference to the contract, and the basis of computation of damages appears to be reasonable and definite (citing Hale Bros. v. Milliken, 142 Cal. 134 [ 75 P. 653 ]; Hamburger v. Halpern, 28 Cal.App. 317 [ 152 P. 61 ]; 3 Cal.Jur. 423; see also Donnelly v. Strueven, 63 Cal. 182 ; Greenebaum v. Smith, 51 Cal.App. 692 [ 197 P. 675 ]). Here, admittedly, the amount of the purchase price, which is one of the sums plaintiff seeks to recover, is readily ascertainable, by mere reference to the contract. Plaintiff was therefore entitled to an attachment notwithstanding that it united in its complaint a cause of action for the recovery of other sums of money as damages for the breach of the contract, which if sued for alone would not entitle plaintiff to an attachment. (Force v. Hart, supra; Hamilton v. Baker-Hansen Mfg. Co., 176 Cal. 569 [ 169 P. 238 ]; Baldwin v. Napa etc. Wine Co., 137 Cal. 646 [ 70 P. 732 ].) The rule in this regard is stated in 3 California Jurisprudence at page 424 as follows: “It is immaterial that plaintiff has also demanded in the complaint other sums which are not liquidated. Sec

The position taken by defendant in support of the order granting the motion is summarized in the concluding paragraph of their brief. In substance it is this: that under the contract as pleaded defendant “did not contract to pay money, but rather to build and deliver two mills; therefore, there was no express contract to pay money.” They then go on to say that “If an attachment should lie it would be on the theory that there was an implied contract on the part of the defendant to repay the purchase price”; that such implied contract does not arise unless there has been a total failure of consideration, and that the complaint herein “shows that there was not a total failure of consideration, in that the mills were actually delivered and used.”

It is well settled that when a sum of money has been paid pursuant to the terms of a sales contract and the consideration for the sale has entirely failed, the law will imply a promise on the part of the vendor to repay the money; and in such case an attachment will lie. (McCall V. Superior Court, supra; Bennett v. Superior Court, 218 Cal. 153 [ 21 P.2d 946 ]; Hamilton v. Baker-Hansen Mfg. Co., supra; S. C. V. Peat Fuel Co. v. Tuck, 53 Cal. 304 ; 3 Cal.Jur. 424.) And in this connection it should be here stated that on this appeal plaintiff seeks to invoke the application of the above doctrine as an additional ground for the reversal of the order. In fact both parties have devoted a considerable por

In support of its main contention that plaintiff was not entitled to an attachment defendant relies largely on the case of Willett & Burr v. Albert, 181 Cal. 652 [ 185 P. 976 ], but an examination of the opinion in that case shows that the contract there sued upon was essentially different in its terms from the one here pleaded in that there the contract contained no express promise on the part of the vendor to repay the purchase price or to pay any other sum of money. In this respect the court said: . . the action in fact is not brought for a recovery of the purchase price, or any part thereof, but is strictly for damages for a breach of contract”; and later on the court said: “. . . it is plain in the present case that there is no express contract for the direct payment of money. ...”

Defendant further contends that the complaint fails to allege a rescission of the contract and that consequently an attachment will not lie on the theory of an express promise for the repayment of the purchase price. It is an established rule, however, that a motion to discharge an attachment cannot serve as a demurrer if the defect in the complaint can be cured by an amendment (Force v. Hart, supra, citing Hathaway v. Davis, 33 Cal. 161 ; Hammond v. Starr, 79 Cal. 556 [ 21 P. 971 ]; Kohler v. Agassiz, 99 Cal. 9 [ 33 P. 741 ]); and in the present case, while it would appear that a rescission may have been imperfectly pleaded, it is quite evident that sufficient facts have been alleged to meet the requirements of section 1789 of the Civil Code which defines

Here the facts alleged show that one of the mills had already been returned to defendants, and that on or about September 20, 1941, plaintiff notified defendants that the “machines would not and could not do the aforesaid required work”; that on October 1, 1941, “on account of the total inability of the said machines to do the aforesaid required work . . . and ... on account of the aforesaid breaches of defendant’s assurances and warranty, plaintiff was forced to abandon any further attempts to make said machines do the required work . . . and was forced to purchase other machinery to do the aforesaid required work, and so notified said defendant on said date of October 1,1941. . . .” (Italics ours.) And while it does not appear from the allegations of the complaint that a formal notice of rescission was ever served upon defendant, it does sufficiently appear in our opinion from the

For the reasons hereinabove stated, the order dissolving the attachment is reversed.

Peters, P. J., and Ward, J., concurred.