Pinkiert v. Kornblum

TAGGART, J.

Appeal from an order denying motion to dissolve an attachment.

The verified complaint alleges that on the ninth day of May, 1906, plaintiff paid to defendant the sum of $1,000, in consideration of which defendant agreed, in writing, to issue, or cause to be issued, to plaintiff five thousand shares of the capital stock of a corporation, then in process of organization, each share of the par value of one dollar.

That on the twenty-ninth day of May, 1906, defendant refused to perform said contract, or to return the said $1,000. That plaintiff thereupon demanded the return of said sum and defendant refused and refuses, etc., to pay the same to plaintiff. The demand is for judgment against defendant for $1,000 and costs of suit.

The affidavit avers an indebtedness of $1,000 “upon an express contract for the direct payment of money, to wit: For money obtained by said defendant at his special instance and request from said plaintiff, ’ ’ etc.

[524]

The motion to dissolve the attachment was based upon two grounds, to wit: That the amount of plaintiff’s claim as stated in the affidavit does not conform to plaintiff’s complaint, and that the complaint does not state facts sufficient to constitute a cause of action.

There appears to be a variance between the complaint and affidavit, but it is not the one specified in the motion. If the complaint stated sufficient facts to entitle plaintiff to recover at all, it would not state a cause of action on an express contract, but we do not regard this as material here.

Plaintiff fully paid for personal property which was never delivered to him. He was entitled therefore to rescind the contract for failure of consideration (Civ. Code, sec. 1689), or to affirm, the contract and bring an action for its breach (Civ. Code, sec. 3309). In the former case, he would be entitled to a judgment for the return of the money paid; in the latter, to a judgment for damages measured by section 3336 of the Civil Code. The complaint is entirely lacking in the allegations necessary to the last-mentioned cause of action, and if sufficient to state such a cause of action it would not support an attachment. Considered as a complaint to rescind, it appears also lacking in allegations necessary to show that the time for performance on the defendant’s part had elapsed.