Force v. Hart

SHENK, J.

This is an appeal from an order denying the defendant’s motion to discharge an attachment. Three

[671]

causes of action are set forth in the complaint. The first seeks to recover the sum of $4,110 as the reasonable value of services alleged to have been rendered by the plaintiff in preparing and drafting certain plans and specifications ordered and accepted by the defendant. The second is for $71.50 for sums laid out by the plaintiff for a building permit. The third cause of action alleges that on or about the nineteenth day of April, 1926, the parties entered into a contract whereby the defendant agreed to employ the plaintiff to construct a three-story brick apartment house on land belonging to the defendant in accordance with said plans and specifications and to pay to the plaintiff for such construction the sum of $68,500; that the defendant, without right, repudiated said agreement and refused to permit said building to be erected, and that because of such repudiation and refusal the plaintiff has been damaged in the sum of $5,700.

At the time of the issuance of the summons the plaintiff filed an affidavit for an attachment pursuant to subdivision 1 of section 537 and section 538 of the Code of Civil Procedure, in which affidavit it was averred, among other things, that the defendant was indebted to the plaintiff “upon an implied contract for the direct payment of money” in the sum of $9,881.50, which is the aggregate of the several sums alleged to be due in the three causes of action. The affidavit specifically set forth that in the total amount sued for the sum of $5,700 was “for damages for defendant’s breach of contract whereby she agreed to employ plaintiff to construct for her a certain building in accordance with said plans and specifications.” The writ was issued and levied. In due time the defendant moved the court to discharge the writ on the grounds (1) that the writ was improperly issued in that the contract alleged in the third cause of action “is not a contract, express or implied, for the direct payment of money,” and (2) that the writ was improperly issued in that the indebtedness alleged in the affidavit to be due and owing from the defendant to the plaintiff exceeds the indebtedness set forth in the complaint. The court entered an order denying the motion but further ordered that “it appearing from the affidavit on attachment of the plaintiff, that said attachment was improperly issued for all sums in excess of five thousand ($5000) dollars all moneys held