B. J. Carney & Co. v. Murphy

• Decision Date: 23 June 1948
• Docket Number: 7425
• Citation: 68 Idaho 376,195 P.2d 339
• Parties: B. J. CARNEY & CO. v. MURPHY
• Court: Idaho Supreme Court

195 P.2d 339

68 Idaho 376

B. J. CARNEY & CO. v. MURPHY

No. 7425

Supreme Court of Idaho

June 23, 1948

Appeal from District Court, Second Judicial District, Latah County Albert H. Featherstone, Judge.

Order reversed.

Estes &amp Felton, of Moscow, for appellant.

An order discharging attachment should never be entered in the absence of a motion to discharge the same, made by a real party in interest.

The action of indebitatus assumpsit, for money had and received will lie whenever one has the money of another which he has no right to retain. Bayne v. United States, 93 U.S 642, 23 L.Ed. 997; Cary v. Curtis, 3 How. 236, 11 L.Ed. 576; Lawson's Ex'r v. Lawson, 16 Grat. 230, 57 Va. 230, 80 Am.Dec. 702; Weber v. Lewis, 19 N.D. 473, 126 N.W. 105, 34 L.R.A.,N.S., 364.

The plaintiff may have the property of the defendant attached in an action upon contract, express or implied, for the payment of money. Sec. 6-501, I.C.A.

Jack McQuade and J. H. Felton, both of Moscow, for respondent.

Attachment will not issue for any causes not coming within the provisions of Sec. 6-501 of the Idaho Code Annotated. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821.

Except where there is fraud or entire failure of consideration, a contract for the direct payment of money will not be implied to support attachment unless the action can properly be pleaded on common count. Willett & Burr v. Alpert et al., 181 Cal. 652, 185 P. 976.

Hyatt, Justice. Givens, C. J., and Budge, Holden and Miller, JJ., concur.

OPINION

Hyatt, Justice.

Plaintiff corporation sued defendant for $ 25,199.41, alleging in substance that early in the year 1941 defendant, a pole maker, agreed to make and sell, and plaintiff agreed to purchase, at going prices, cedar poles and other wood products; that plaintiff agreed to assist defendant financially in the purchase of stumpage and timber lands, and to furnish supplies, and also advance reasonable sums to aid him in meeting his payrolls in the course of making and supplying such poles and wood products; that it was further agreed that credit would be given the defendant upon the books of the plaintiff for poles and wood products supplied it by defendant; that from the year 1941 to November 20, 1947, there was maintained between the parties a mutual, open and current account, with each party furnishing goods, materials and cash to and for the benefit of the other; that ever since the fall of 1945 defendant has failed and refused to deliver to plaintiff any poles or wood products whatsoever; that the last item on the account was entered November 20, 1947, by allowance of a credit which defendant claimed; that there remains due and owing to plaintiff a balance under said account of $ 25,199.41, which is unpaid, and which the defendant refuses to pay.

The complaint was filed December 2, 1947, and on December 3, 1947, the affidavit and undertaking for attachment being also filed, a writ of attachment issued, by which the Sheriff attached certain real and personal property of the defendant. On December 17, 1947, defendant served and filed a written notice of motion to discharge said writ on the ground that the same was improperly and irregularly issued, in that (so far as material to this appeal) the action is not upon contract, express or implied, for the direct payment of money, but is one for damages for breach of contract; and the affidavit for attachment is insufficient.

The transcript on appeal contains no written motion nor any showing of an oral motion to discharge the writ, but the order discharging the attachment recites among other things that: "Defendant's motion to discharge attachment coming on regularly to be heard this 22nd day of December, 1947, pursuant to notice had and given * * * the plaintiff appearing by its attorneys of record * * * and the defendant appearing by his attorneys * * * and the matter having been argued to the court * * *".

Appellant assigns as error the discharge of the attachment for the reasons:

(a) No motion to discharge attachment was ever made;

(b) The writ was properly issued in compliance with the law.

Appellant's first assignment is without merit. The order discharging the attachment recites that the motion came on to be heard. The record discloses no objection by appellant to the lack of any motion, written or oral. The situation is practically identical with that in Leggett v. Evans, 16 Idaho 760, 102 P. 486, 487, where, in support of a motion to dismiss an appeal, it was urged that no motion for a new trial was ever filed. The court said: "The transcript in the case at bar as certified shows that a motion for a new trial was made and passed upon by the trial court or judge. That being a court of general jurisdiction, the presumption is that its acts were all regular, and that it would not pass upon a motion for a new trial unless such motion were made. No objection was raised in the court below that a motion for a new trial had not been properly made, and the judge recites in his order as follows: 'The motion of the defendant in the above-entitled action asking that the verdict of the said cause be set aside and vacated and a new trial granted, the said action coming on to be heard this 9th day of Nov., 1908,' etc., and that 'It is hereby ordered that the said motion be and the same hereby is overruled.' The record, therefore, on its face shows that a motion for a new trial was made. As bearing upon this question, see State v. Wright, 12 Idaho 212, 85 P. 493; Stoddard v. Fox [15] (Idaho) [704], 99 P. 122. The presumptions are all in favor of the regularity of the proceedings of courts of general jurisdiction."

See also Curtis v. Walling, 2 Idaho 416, 18 P. 54, wherein the voluntary appearance by attorney and his participation in the argument of a motion was held to be a waiver of notice of the motion. In the case at bar, appellant's attorneys appeared in court and argued and resisted the matter of the discharge of the attachment. Therefore, appellant was not misled, nor were its substantial rights affected. As was said in Nobach v. Scott, 20 Idaho 558, 563, 119 P. 295, 296: "* * * Parties will not be permitted to stand by and not raise seasonable objections to mere defects in papers and proceedings in a court, and thus permit the court to act as though there were no defects in the proceedings, and thereafter take advantage of such defects on appeal."

Turning to the question of whether the writ of attachment was properly or improperly issued, we need only to consider the affidavit for attachment and the complaint, since it is undisputed that defendant is an Idaho resident and his property was attached under the writ. The affidavit for attachment is sufficient. It sets forth the particular allegations required by Sec. 6-502, I.C.A. Ross v. Gold Ridge Mining Co., 14 Idaho 687, 95 P. 821; Knutsen v. Phillips, 16 Idaho 267, 101 P. 596.

Sec. 6-501, I.C.A. provides in part:

"The plaintiff * * * may have the property of the defendant attached, as security for the satisfaction of any judgment that may be recovered, * * * in the following cases:

"1. In an action * * * upon contract, express or implied, for the direct payment of money * * *"

The nature of the action is to be determined upon the complaint alone. Heffron v. Thomas, 61 Mont. 10, 201 P. 572. The inquiry into its sufficiency to sustain the attachment may not go further than to ascertain whether the action is upon a contract, express or implied, for the direct payment of money; whether it states facts sufficient to constitute a cause of action against the defendants; and, if it does not, whether it can be amended so as to state a cause of action. Union Bank & Trust Co. v. Himmelbauer, 56 Mont 82, 181 P. 332 at page 335. Substantially to the same effect is Ross v. Gold Ridge Mining Co., 14 Idaho 687, 690, 95 P. 821, 822.

In the latter case, it was said: "The statute thus provides that an attachment may issue in an action upon a judgment or upon a contract, express or implied, for the direct payment of money. If the complaint discloses that it is not such an action, and an attachment is issued, then it was improperly issued, and upon proper motion will be dissolved."

Conversely, if the complaint by any reasonable intendment discloses an action upon contract, express or implied, for the direct payment of money, the writ of attachment was properly issued.

Appellant claims the action is one for a balance due on an open, mutual and current account, which theory, if correct, we concede, permits an attachment, there being an implied contract to pay the indebtedness.

Respondent contends that, under the allegations of the complaint, this action can only be one for damages for breach of contract. However, the complaint is not drawn for damages for breach. There is no allegation of damages for defendant's failure to deliver the poles. Morrison v. Am. Dev. & M. Co. 5 Idaho 77, 47 P. 94. See also Smith v. Johnson, 2 Wash.2d 351, 98 P.2d 312, where a similar contention was made and rejected. Nor does the contract call for the delivery of any specific lot or definite quantity of poles and wood products. No time was fixed for the duration thereof.

Plaintiff's claim is either for a balance due for advances which constituted loans, to be repaid in commodities, or for the return of moneys advanced upon the purchase price of the same. The action is one for money loaned or for money had and received, either of which constitutes a contract implied by law for the direct payment of money, for which an attachment will lie. If the advances were loans, it is still unnecessary in view of the conclusions hereinafter reached, for us to decide whether the provisions for such advances are independent and severable parts of the...