King v. Cline

JAMES, J.

Defendant appeals from a judgment entered against him for damages arising by reason of the alleged conversion of an automobile taken by him under attachment in a suit of the Union Oil Company against Parsons. The latter action grew out of the relation of employee and employer which had existed respectively between Parsons and the Union Oil Company. Parsons, while employed by the Oil Company as a truck driver, became intoxicated and so negligently handled the machine under his control as to greatly damage it. The Oil Company brought the action for damages for the alleged breach of duty and in that action procured a writ of attachment and caused it to be levied upon an automobile then in the possession of Parsons. This automobile was being purchased from one Cook under a conditional sale contract which reserved title in the seller, and the purchase payments had not at that time been all made. After the attachment was levied, being apprised of this latter situation, Cook was approached by representatives of the Oil Company and asked what the balance due from Parsons was and whether he would accept the same from the Oil Company. Cook had at this time filed with the sheriff a third-party claim, demanding the release .of the automobile from the attachment on the ground that he was the owner thereof. Cook informed the Oil Company in effect that he would consider the matter, and soon thereafter he made an assignment of his interest in the contract and automobile to the plaintiff King. King renewed a claim for the automobile in his own behalf to the sheriff and the sheriff

[698]

refused to release the same, and King then brought this action for conversion and obtained judgment.

Appellant makes several contentions as ground for reversal. It is insisted first that the court erred in sustaining an objection to a question asked of a witness, the question being as follows: “Are you acquainted with the understanding of the Union Oil Company with its men in regard to the handling of the Union Oil Company property?” A general objection was interposed to the question and sustained by the court. Regardless of the matter which we will immediately call attention to, the objection was properly sustained for the reason that the question called for a conclusion of the witness and not for the facts as to what the contract was between the oil company and Parsons. Further than this, it is apparent that the whole purpose in asking the question was to show that the relations between Parsons and the Oil Company during the former’s employment was such that Parsons assumed the obligation to carefully and skillfully manage and control the property of the company committed to his charge. Once admitting the employment, as to which there was no dispute, the condition sought to be proved would be implied. While the question as to the validity of the attachment is perhaps not properly presented here, in passing we express the view that the attachment was not authorized to be issued under the facts claimed. By section 537 of the Code of Civil Procedure it is provided that the writ of attachment may issue “in an action upon a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this state, and is not secured by any mortgage or lien upon real or personal property. . . In order to authorize a writ of attachment to be issued, we think it clear that the money claimed in the suit must be due under the contract, by reason of the obligations, express or implied, which the contract casts upon the party sought to be charged. The action referred to was purely an action for damages which were contingent upon Parsons failing to perform his contract. In the sense of the section, the damages so sought to be recovered would not be