Rapoport v. Hoberg

BALTHIS, J. This is an appeal from an order granting the motion of defendant Hoberg to dissolve an attachment. Defendant, as respondent here, has made no appearance in this court and the clerk’s transcript and appellant’s brief comprise the record on appeal.

The question presented is whether this action is “upon a contract, express or implied, for the direct payment of money,” as required by subdivision 1 of section 537 of the Code of Civil Procedure.

The complaint is stated in three causes of action as follows:

(1) That defendant made a written agreement with plaintiff for the construction of a dwelling on plaintiff’s property; that defendant “agreed to make all studies, plans and specifications, and to provide work, labor and material and supervise the construction of said dwelling for plaintiff,” and to complete the same within a specified period; that plaintiff agreed to pay a total cost therefor of $53,000, and defendant agreed “that in the event the cost of said dwelling exceeded said sum said defendant would pay such excess, however, if said cost was less than $53,000.00 said defendant would receive the amount of such difference”; that plaintiff duly performed all conditions on his part to be performed; that defendant failed to comply with certain portions of the contract relating to the construction of the dwelling; that plain[480]tiff “actually expended the sum of $57,906.86 for the cost of construction of said dwelling thus far” and “has further become obligated to pay an additional sum of $9,664.36 for unpaid work, labor and material performed by others” in connection with said construction; that “plaintiff has been damaged in the sum of $14,071.22 constituting the excess of the total of all of said sums expended by plaintiff and yet to be paid over the aforesaid sum of $53,000.00. ...”

(2) That an account was stated between plaintiff and defendant wherein it was agreed defendant was indebted to plaintiff in the sum of $14,071.22.

(3) That by fraud and deceit practiced by defendant upon plaintiff, the latter was damaged in the sum of $17,571.22.

The third cause of action mentioned above is not involved here and therefore is not described in detail. After a writ of attachment was issued specifying the amount of $14,071.22, defendant made his motion to dissolve the attachment. Plaintiff appeals from the order granting the motion.