San Francisco Iron & Metal Co. v. Abraham

THE COURT.

A hearing in this matter was granted by this court for the purpose of giving further consideration to certain contentions urged by appellant-petitioner as to

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the soundness of the conclusion arrived at by the District Court of Appeal. Such investigation leads us to the conclusion that the trial court did not abuse or misuse its power by discharging the attachment and that the appellate court’s decision as to the law of the case may well be affirmed. The opinion of Mr. Justice Sturtevant, Division Two, First Appellate District, with the noted correction as to the order of the counts of the complaint, which in no way affects the substance of the opinion, is adopted and approved as a part of our opinion. It follows:

“This is an appeal by the plaintiff from an order made discharging an attachment. On the hearing of the motion the parties introduced in evidence the plaintiff’s verified complaint, its affidavit for an attachment, its undertaking, plaintiff’s verified amended complaint, defendants’ notice of motion to discharge, defendants’ affidavit and the affidavit of L. H. Silberman, the vice-president of the plaintiff.

“From the foregoing papers the following facts appear: Prior to November 1, 1926, N. Abraham was the owner of a store and doing business under the name of N. Abraham and Company. On that date Lou H. Silberman and Harry Silberman, as the agents of plaintiff, and N. Abraham formed a partnership and thereafter conducted the business of the store under the name of N. Abraham Mercantile Co. As for the contribution of the new partner or partners, the plaintiff paid into the funds of the copartnership $60,093.91. The new firm continued to transact business until the first day of December, 1927. At that time it was in financial embarrassment and the defendant proposed to give or take. By agreement of the parties, the defendant transferred to the plaintiff all of his interest and the plaintiff assumed all of the obligations of the partnership; but by the terms of the dissolution agreement, no sum of money was stipulated as payable from either party to the other. The plaintiff’s complaint is in two counts. The first count specifically pleads a cause of action as for deceit. The second count pleads a cause of action as for moneys had and received. It was stipulated at the trial that both counts are but different methods of pleading one transaction. It nowhere appears that the plaintiff rescinded the partnership contract, offered to rescind it, nor even at this time, offers to place the defendant