Sturtevant v. K. Hovden Co.

TYLER, P. J.

Appeal from an order dissolving an attachment.

The sole question here involved is whether or no the two causes of action set forth in the complaint, or either of them, is of such a character as to warrant the issuance of an attachment.

The first cause of action is based upon the theory of rescission and rejection, the complaint in substance alleging that plaintiff's assignors purchased from defendant in San Francisco certain canned apricots of specified grades and

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standards, to 'be shipped to New York. The goods so purchased were fully paid for. Upon arrival at their destination it was discovered, so it is alleged, that they were not up to standard. Plaintiff’s assignors registered an objection to the goods, but subsequently sold the same. Upon such sale they did not receive the amount of the contract price, and, as an additional loss, they were subjected to certain expenses, which brought the amount of their alleged damage to the sum of $2,946.44.

The second cause of action sets forth ■ the same state of facts, but under it plaintiff seeks recovery, not upon the theory of rescission, but upon the basis of a breach of an implied contract of guaranty.

An attachment was issued in the action, which was subsequently vacated and set aside by the trial court upon its conclusion that the action was one in which the application of the attachment statutes could not be invoked, and the plaintiff appeals from the order made by the trial court in conformity with such view.

It is claimed by him that an analysis of the two causes of action as pleaded will show that they are of such a character as to support an attachment. It is argued that as to the first it sets forth a simple cause of action by a purchaser who has been tendered something different from that which he paid for, and that under such circumstances he is entitled to recover back the money so paid and advanced upon a consideration which has wholly failed, and that therefore the first count is nothing more than an action for money had and received.

With reference to the second count it is contended that the statute equally applies for the reason that the right of ■appellant to the remedy for a breach of warranty arises not upon the breach by' his vendor of the contract of sale, but upon his separate, distinct, and collateral agreement of warranty, from which the law implies that the vendor upon a breach thereof is deemed to agree to compensate his purchaser by a direct payment of money in case the goods sold are not as represented. Appellant concludes from these premises that whatever the foundation of his right may be, whether based upon rescission as set forth in his first cause of action, or upon breach of warranty as recited in the