California Packing Corp. v. Kato

WASTE, P. J.

[1] This is an appeal from an order denying a motion to dismiss an attachment. The action was brought by respondent to recover damages from the appellant, by reason of a breach of his agreement to sell and deliver a crop of tomatoes. It is alleged in the complaint that under the terms of the contract between the parties the defendant agreed to sell and deliver, and plain

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tiff agreed to buy, when the same became ripe and ready for delivery, all tomatoes grown on a designated parcel of land. The price agreed to be paid was the sum of fifteen dollars per ton. The damage alleged is the difference between that price and the market price of the tomatoes on the day that appellant contracted to deliver them, and upon every day after that time to the filing of the suit, which market price is alleged to be twenty-five dollars per ton.

The affidavit for attachment contains the averment that the defendant in the action “is indebted to plaintiff in the sum of two thousand dollars ($2000), over and above all legal set-offs and counter-claims upon a contract for the direct payment of money, to-wit, a contract by which the defendant agreed to pay plaintiff the difference between "three thousand dollars ($3000), the contract price of a certain crop of tomatoes, and five thousand dollars ($5000), the market value of said tomatoes.” It further shows that the contract was made, and was payable, in this state, and complies fully with section 538 of the Code of Civil Procedure, which prescribes what an affidavit for attachment must contain.

The defendant made a motion to dissolve the writ of attachment upon the ground that the same was improperly and irregularly issued, in that there is a fatal variance between the affidavit upon which it was issued and the complaint, in the action, specifying two reasons: (1) That it appears upon the face of the complaint in the action that the defendant is not indebted to plaintiff upon a contract, express or implied, for the direct payment of money; (2) that the action is one for damages only, and the damages are not liquidated.

Respondent insists that the action is one upon an implied contract for the direct payment of money, to wit, an implied contract to pay the buyer the difference between the contract price and the market value of the goods.