Bringas v. Sullivan

• Decision Date: 26 July 1954
• Citation: 126 Cal.App.2d 693,273 P.2d 336
• Parties: BRINGAS et al. v. SULLIVAN. Civ. 20001.
• Court: California Court of Appeals Court of Appeals

Page 336

273 P.2d 336

126 Cal.App.2d 693

BRINGAS et al. v. SULLIVAN.

Civ. 20001.

District Court of Appeal, Second District, Division 3, California.

July 26, 1954.

Desser, Rau, Christensen & Hoffman, and Robert Haves, Beverly Hills, for appellants.

Ralph R. Benson, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiffs from an order granting a motion to discharge an attachment. Plaintiffs had filed a verified complaint for breach of a written contract, and an affidavit for an attachment. The writ was issued and levied. Defendant moved to discharge the attachment. He did not file a counter-affidavit. His motion was made on the ground the attachment was improper under sections 537 and 538 of the Code of Civil Procedure permitting attachment in an action on a contract for the direct payment of money, and based it on the 'files, papers and proceedings herein.' The validity of the attachment is to be determined from the verified complaint and the affidavit therefor. Code Civ.Proc. §§ 537, 538.

The complaint alleged: Plaintiffs and defendant are residents of the city of Los Angeles. Plaintiffs are copartners doing business under the name of Bringas Bros. Defendant is the owner and operator of a cafe. On November 20, 1952, the parties entered into a written contract by the terms of which plaintiffs agreed to install and maintain for eight years a coin operated automatic phonograph machine in defendant's cafe, and defendant agreed to pay plaintiffs 50% of all moneys deposited in the machine. The contract was made and the moneys are payable in the city of Los Angeles. Plaintiffs have performed all of their obligations under the contract and at all times have been ready, willing, and able to continue that performance.

By the contract defendant agreed that he would not allow any coin operated automatic phonograph machine other than that of plaintiffs to be placed in his place of business at any time during the term of the contract, and that he would during all business hours keep plaintiffs' machine in operation and available and readily accessible to the patrons of his place of business. Contrary to the terms of the contract, defendant on April 30, 1953, disconnected plaintiffs' machine, moved it to a place on the premises where the patrons would not use it, and installed a similar machine that did not belong to plaintiffs. Plaintiffs demanded that defendant remove the machine which did not belong to them and reinstall their machine; defendant refused and failed to do so.

The contract provided that in the event any of its terms are breached by either party all sums then due or to become due and payable shall immediately become due and payable at the time of the breach. From the time of the execution of the contract to the date of its breach, plaintiffs' share of the earnings of the phonograph machine averaged approximately $14.90 a week. On information and belief, plaintiffs allege that the machine would, during the balance of the term of the contract, earn as plaintiffs' share approximately $14.90 a week. The contract at the date of its breach had 393 weeks to run. The breach has caused plaintiffs to be damaged in the sum of $5,855.70.

The contract also provided that in the event plaintiffs are required to commence any action to enforce any of its terms or provisions, defendant shall pay to plaintiffs all costs and expenses so incurred, including reasonable attorney's fees to be fixed by the court. Plaintiffs employed a law firm for that purpose; and $500 is a reasonable attorneys' fee to be fixed by the court.

A copy of the contract was attached to the complaint and incorporated therein by reference.

Plaintiffs prayed for judgment in the sum of $5,855.70 with interest from the date of breach, attorneys' fees in the amount of $500, costs, and general relief.

The affidavit for the attachment states that defendant is indebted to plaintiffs in the sum of $5,855.70, plus interest from April 30, 1953, over and above all legal setoffs and counterclaims, on the express contract of November 20, 1952, for the direct payment of money, and costs of suit; the contract was made and is payable in this state; the contract was not secured; and the attachment is not sought or the action prosecuted to defraud or otherwise injure defendant's creditors.

Plaintiffs contend the motion should have been denied because the attachment was issued in an action upon a contract for the direct payment of money. Defendant argues: 1. Under the contract defendant was not required to make any direct payment of money of plaintiffs. Plaintiffs had control of the phonograph machine and they were required to pay defendant 50% of all the moneys deposited in the machine. 2. Plaintiffs did not allege any damages whatsoever. 3. The loss of profits by plaintiffs are too uncertain, unclear, and not easily computable, to justify an attachment; the estimation of the profits would require a double process of estimation: first, it would be necessary to estimate what the average 'take' would be in the future, and second, it would be necessary to estimate what the net profit would be in the future.

Section 537 of the Code of Civil Procedure provides: 'The plaintiff, at the time of issuing the summons, or at anytime afterward, 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 a contract, express or implied, for the direct payment of money, where the contract is made or is payable in this State,' and it is not secured. Section 538 requires the writ to be issued if the affidavit shows sufficient facts under section 537, states the amount of the indebtedness and that the attachment and action are not aimed at hindering, delaying, or defrauding any creditor of defendant.

The party invoking the remedy of attachment must stand in the position of a creditor to the person against whom it is invoked. (5 Cal.Jur.2d 600, § 6.) As a rule any person standing in the position of a creditor and having a claim satisfying the requirements of section 537 of the Code of Civil Procedure may invoke the remedy of attachment. Mayer v.Northwood Textile Mills, 105 Cal.App.2d 406, 410, 233 P.2d 657. All that is required is that the action be based on a contract calling for the payment of money. The word 'direct' as used in section 537 of the Code of Civil Procedure is surplusage, for every contract for the payment of money would be a contract for the direct payment of money. McCall v. Superior Court, 1 Cal.2d 527, 539, 36 P.2d 642, 95 A.L.R. 1019; Redwood Fibre Products Co. v. Miller Mfg. Co., 61 Cal.App.2d 505, 510, 143 P.2d 389. Direct has been defined as meaning an amount ascertainable with reasonable certainty. Hathaway v. Davis, 33 Cal. 161, 167-168; Dunn v. Mackey, 80 Cal. 104, 107-10, 22 P. 64. The essential and material allegation is that the money sued on is due on a contract. Simpson v. McCarty, 78 Cal. 175, 179, 20 P. 406; Hale Bros. v. Milliken, 142 Cal. 134, 138, 75 P. 653.

The contract provides that plaintiffs were to open the phonograph machine at least once every two weeks during its term and pay defendant 50% of all moneys which were deposited in the phonograph; provided, however, that if the total amount of the money deposited in the phonograph during any two-week period did not exceed $6, then, in that event, defendant was not to be entitled to any portion of the moneys deposited for that particular two-week period. The right to open the phonograph machine was designed to prevent plaintiffs from suffering losses that might have arisen from permitting other persons the right of access to the machine's coin box. The contract provides for payment to defendant of 50% of all the proceeds; and, as plaintiffs alleged, it also provides for the payment of the same percentage to plaintiffs. There were only two parties to the contract. After paying defendant 50% of all the moneys, the remaining 50% was to be retained by plaintiffs. The moneys were to be divided equally between the parties, and this was done during the first five months of the term of the contract. The matter of who should open the coin box and divide the moneys should not control the rights of the parties when the over-all intent clearly appears from the contract regarded in its entirety. The contract embodies an express promise on the part of the defendant to pay to plaintiffs a sum of money. It states that in the event any of its terms are breached by either party all sums then due or to become due and payable shall immediately become due and payable at the time of the breach. This provision would be meaningless if defendant had undertaken no duty to pay plaintiffs. All of the provisions of the contract must be given effect. Civ.Code, § 1650. The contract says 'either party.' We think it clear that the parties intended moneys to be payable to plaintiffs by defendant--that is, 50% of the gross proceeds. The payment was accomplished by defendant's retaining possession of the machine with the moneys deposited therein, the opening of the machine by plaintiffs, and division of the moneys. The failure of defendant to maintain the machine was manifestly a refusal by defendant to pay plaintiffs moneys that would be deposited therein.

We pass to consideration of the question whether it appears from the contract, the complaint, and the affidavit that the computation of damages is reasonable, definite, and readily ascertainable. See Hayward Lumber & Investment Co. v. Construction Products Corp., 110 Cal.App.2d 386, 387, 243 P.2d 52. 'It is a well-recognized rule of law in this...