Dunn v. Mackey

California Supreme Court Aug 2, 1889 No. No. 12915Published

Before: Works

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Holding. The court held that an attachment may properly issue in an action for breach of contract where the contract provides a standard for determining the amount of damages, even if the specific amount requires proof of value at trial. The defendant's absolute obligation to realize a fixed sum for the plaintiff within a specified time created a sufficient basis for an attachment.

Issues

Whether a complaint for damages arising from a breach of contract states a cause of action when the contract involves an agent's guarantee to realize a specific sum from the sale of property.
Whether an attachment may issue in an action for breach of contract where the damages are not fixed by the contract but are ascertainable through proof of value at trial.

Disposition. reversed

Quotations verified verbatim against the opinion

“The complaint is one for damages for the breach of a contract, and is sufficient.”

“Attachment may issue in an action for damages for the breach of a contract.”

“The contract sued on was not one of agency for the sale of real estate, simply. The defendant positively bound himself to realize to the plaintiff, out of the property, within one year, the sum of twelve thousand five hundred dollars.”

Synopsis

Agent—Liability under Contract to Sell for Specified Amount.— An agent to sell real property, who expressly contracts to sell the same within a year for a specified amount, is liable in damages to his principal for a breach of his contract.

Id.—Measure of Damages.—-In an action to recover for the breach of such a contract, the measure of damages is the difference between the actual value of the land at the end of the year and the amount the agent hound himself to realize from it.

Id. — Attachment may Issue in Action fob Breach. — An attachment may be properly issued in such an action.

Id.—Amount Due under Contract how Sufficiently Shown.—The amount actually due under the contract is sufficiently shown, for the purposes of the attachment, when the complaint alleges precisely what the damages are, and the affidavit in attachment states that the defendant is indebted to the plaintiff in the same amount, upon an express contract for the direct payment of money.

Id. — Action for Damages for Breach of Contract—When Attachment may Issue. —An attachment may issue in an action for damages for the breach of a contract, even when proof is necessary at the trial to show the amount of damages. But to authorize its issuance, there must exist a basis upon which the damages can be determined by proof.

Works, J. This is an appeal from an order dissolving an attachment.

The complaint is founded on the following agreement:—

“This agreement, made and entered into on the twenty-eighth day of July, 1887, by and between C. E. Mackey, of the city and county of Los Angeles and state of California, who will he hereinafter referred to as the party of the first part, and Poindexter Dunn, of the county of [105]St. Francis, and state of Arkansas, who will be hereinafter mentioned as the party of the second part,—

“Witnesseth: That the said second party having this day purchased from said party of the first part, as agent for George D. Rowan, the following described lots of land situated in the city and county of Los Angeles and state of California, to wit, lots numbered nineteen (19) and twenty (20) of the Dana tract, as per map recorded in hook 5, at page 324, of miscellaneous records of Los Angeles County, for the sum and price of ten thousand dollars (10,000), the said first party, for and in consideration of the sum of one dollar cash in hand to him paid by the said second party, the receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter mentioned and set forth, hereby agrees to take charge of and sell said lots of land for said second party, as follows, to wit:—

“The said first party agrees and binds himself to sell said lots for said second party within twelve months from the date hereof; and to guarantee, account for, and pay over to said second party at least twelve thousand five hundred dollars net therefor, except interest paid by said second party on the deferred payment for said lots. Said second party agrees that said first party may return and have, and said first party agrees to accept, all excess over said twelve thousand five hundred dollars which he may receive for said lots, for his compensation for his services as agent herein. Said first party agrees to account to said second party, or his authorized agent, for the proceeds of sale of said premises as above stated whenever, prior to the expiration of said twelve months, he may effect a sale of said premises. It is agreed that said first party may sell said lots for not less than one half cash and the balance within twelve months from date of sale, with interest at ten per cent per annum.

“In witness whereof, said first and second parties have hereunto set their hands and seals.”

Dunn v. Mackey

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