Greenebaum v. Smith

KERRIGAN, J.

This is an appeal from an order denying defendant’s motion to discharge an attachment. The action is for breach of a charter-party. At the commence

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ment of the action the plaintiff had a writ of attachment and caused its levy upon property of the defendant. The defendant moved to quash the writ and vacate the attachment, upon two grounds; first, that the action is not one within section 537 of the Code of Civil Procedure, i. e., it. is not for the direct payment of money; second, that if the case is within said section, then defendant is deprived of the equal protection of the laws because, in like ease, if plaintiff had breached the contract, the defendant could not have secured an attachment. The defendant supported his motion with an affidavit that he was at all times pertinent to the action a resident of the state of California. His motion was denied, and he takes this appeal from the court’s order in that behalf.

The plaintiff was the owner of the schooner “Bangor,” and chartered the vessel to the defendant under a written contract, made and payable within the state of California, for a voyage from Sidney, New South Wales, to San Francisco. Under this contract defendant agreed to load a full and complete under-deck cargo of copra in bulk, and a full and complete deck cargo of vegetable oil in barrels or drums, or general merchandise, and agreed to pay forty dollars per ton on the under-deck cargo, and twenty-five dollars per ton on the deck cargo. The “Bangor” could have carried five hundred tons of the agreed cargo under deck and four hundred tons on deck, so that had the defendant provided the cargo agreed upon by him he would have been required to pay in all the sum of thirty thousand dollars. Defendant failed to provide such cargo and the “Bangor” was compelled to sail empty from Sidney to San Francisco. This action was brought to recover thirty thousand dollars freight money, less the sum of two thousand dollars which plaintiff would have been obliged to pay for loading and discharging at the ports of Sidney and San Francisco respectively. The plaintiff accordingly fixed his damage at the sum of twenty-eight thousand dollars.

The measure of damages in this class of eases seems to be well settled.

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