Oil Well Core Drilling Co. v. Barnhart

BARNARD, P. J.

This appeal is from an order granting the defendants’ motion to dissolve an attachment. The motion was granted on the ground that the attachment was improperly issued “in that the cause of action as disclosed in the pleadings is not one on an express contract for the direct payment of money as alleged in the affidavit”.

The complaint contains three counts. The first alleges that the defendants became indebted to the plaintiff for goods, wares and merchandise sold and delivered in the sum of $15,000. The second count alleges that the defendants became indebted to the plaintiff for moneys had and received by the defendants for the use and benefit of the plaintiff in the sum of $15,000. The third count alleges .the execution of a written contract; that under this contract the plaintiff was to furnish certain tools and oil well equipment which were to be rented and hired out to various people by the defendants; that the defendants were to receive one-third of the rentals and the plaintiff two-thirds; that certain bits were to be sent to the plaintiff and sharpened at its place of business; that all compensation for sharpening said bits was to be retained by the plaintiff; and that all commissions due to the defendants were to be paid by the plaintiff at the end of each month. It is further alleged that the defendants rented and hired such tools and equipment to various persons, that contrary to the agreement the defendants collected rentals and caused bits to be sharpened at places other than the office of the plaintiff and collected the charges therefor, and by reason thereof the defendants became indebted to the plaintiff in the sum of $15,000.

The first question presented is whether this action is upon a contract, express or implied, for the direct payment

[679]

of money. The following language from the opinion in

De Leonis

v.

Etchepare,

120 Cal. 407 [52 Pac. 718], is appropriate here:

“That the relation between the parties created by the power of attorney is a contract relation is beyond question. Nor is the character of that relation, so far as defendant’s duties and liabilities are concerned, affected by the alleged fact that it was created by or through the fraud of defendant. Moneys received by the agent are not his, and from the duty of the agent to pay over moneys received by him in that capacity the law implies a promise that he will do so upon demand, and a demand is duly alleged.”