Allen v. Merchants Electric Co.

GIBSON, C. J.

This is an appeal from an order discharging a writ of attachment in a suit against a resident of this state. The availability of the remedy is limited by statute to certain classes of action, and the sole question presented on this appeal is whether this action is “upon a contract, express or implied, for the direct payment of money” as required by subdivision 1 of section 537 of the Code of Civil Procedure.

The complaint is in four counts, which allege:

1. That by a written contract of July 23, 1957, a copy of which is made part of the complaint by reference, defendants agreed for a price of $3,145, payable on completion of the job, to furnish and install certain electrical equipment in a hotel owned by plaintiff and that they failed to perform parts of the agreement, causing plaintiff damage in the sum of $7,344, the reasonable value of the work not performed, and in an unascertained amount for injury to his business.

2. That by a written contract of August 14, 1957, a copy of which is made part of the complaint by reference, defendants agreed to furnish and install additional electrical equipment for $2,553.68, payable on completion of the job, and that stated deficiencies in their performance caused plaintiff damage in the sum of $13,719, the reasonable value of the deficiencies, and in an unascertained amount for injury to his business.

3. That on or about November 6, 1957, the parties entered -into a written contract, a copy of which is attached to the complaint and made a part thereof by reference, whereby defendants agreed, in consideration of the payment of $1,500 by plaintiff to defendants, to do any work and to furnish any parts and materials required by plaintiff, the Electrical Division of the City of Los Angeles, the Department of Water and Power of the City of Los Angeles, and certain named companies, necessary to complete all items set forth in the contracts of July 23, 1957, and August 14, 1957; that defendants failed and refused to perform their agreement or return the sum of $1,500 or any part thereof. The writing incorporated by reference is a letter from defendants to plaintiff which acknowledges the receipt of $4,300 on account of the two contracts dated July 23 and August 14, and states that defendants have submitted to plaintiff a statement for $303.84

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