Clarence E. Morris, Inc. v. Vitek, 4741

• Decision Date: 30 September 1964
• Docket Number: No. 4741,4741
• Citation: 395 P.2d 521,80 Nev. 408
• Court: Nevada Supreme Court
• Parties: CLARENCE E. MORRIS, INC., a California Corporation, Appellant, v. Alvin J. VITEK, Respondent.

Page 521

395 P.2d 521

80 Nev. 408

CLARENCE E. MORRIS, INC., a California Corporation, Appellant, v. Alvin J. VITEK, Respondent.

No. 4741.

Supreme Court of Nevada.

Sept. 30, 1964.

Stanley W. Pierce and Don L. Griffith, Las Vegas, for appellant.

Jones, Wiener & Jones, Las Vegas, for respondent.

BADT, Chief Justice.

This is an appeal from an order denying a motion to discharge a writ of attachment.

The affidavit for the writ of attachment stated that the defendant, appellant herein, was indebted to plaintiff in the sum of $511,811 'upon an express contract for the direct payment of money, to wit: $511,811.' Such affidavit followed the wording of NRS 31.010 providing for the issuance of the writ: '(1) In an action upon a judgment or upon a contract, express or implied, for the direct payment of money * * *.' The complaint was in two counts, the first being for $117,611 and the second for $394,200, based upon a memorandum attached as exhibit A which recited the association of the parties in land developments and housing subdivision construction on five tracts in Chula Vista, a tract in Escondido, a tract in Ocean Side, a tract in National City, and two tracts in Santa Maria, all in the State of California. As to the first nine tracts it was recited: 'With reference to said tracts, it is understood that the relation of the parties was one of employer (Morris) and employee (Vitek), with Vitek receiving a salary, plus 3% of the net profits from said enterprise.

'It is understood that Vitek has received all salary commitments but has not received, and still has coming, 3% of profits. It is further understood that said profits may be in the form of cash or in the form of second trust deeds. It is agreed that as soon as profits can be ascertained and/or trust deeds divided, Vitek will receive his percentage compensation as above outlined.'

As to the two tracts in Santa Maria, California, it was recited: 'The agreement between the undersigned parties with reference to the Donovan Park units [Santa Maria] is that all net profits from the venture, whether in the form of trust deeds or money, will be divided equally between Morris and Vitek.

'It is understood that Vitek shall be entitled to receive, and shall receive, one half of all trust deeds taken as profits, such trust deeds to be assigned to and delivered to Vitek as soon as they are available.'

With reference to the two tracts in Las Vegas, Nevada, consisting of approximately 114 houses, it is recited: 'With reference to Greater Las Vegas, the understanding is that Vitek is employed by Morris at his regular salary and, in addition, is to receive 3% of said profits.' It is first to be observed that as to all of the California tracts, Vitek was to be paid to the extent mentioned, in the form of cash or in the form of second trust deeds, but that with reference to the two Las Vegas tracts, he was to receive his regular salary and in addition 3% of net profits.

No question is raised as to payment of Vitek's salary. Apparently that has all been paid as agreed.

The court below, in denying the motion to set aside the attachment, appears to have held in its oral decision from the bench that because the affidavit for attachment recited that the action was based on a contract for the direct payment of money, this satisfied the statute because 'if the contract spells out a formula whereby it can be implied and determined that a sum certain is due the plaintiff, that is sufficient to meet the requisite of subparagraph 1 [of NRS 31.010].' This is entirely understandable with reference to the two Las Vegas tracts under which Vitek 'is employed by Morris at his regular salary and, in addition, is to receive 3% of net profits.' Appellant does not appear to contend that the net profits on the Law Vegas project were not subject to simple computation.

Our conclusion is that on the other projects in which Vitek's share was payable in cash or in second deeds of trust, there was not a contract for the direct payment of money. Here respondent mistakes the issue and contends that if the damages resulting from a breach of the contract can be ascertained, the issuance of the writ is justified. However, the ascertainment of the amount of damage is only part of the issue. It does not answer the question whether the contract was one for the direct payment of money. If the validity of the attachment depends only upon the question of whether the damages can be computed or ascertained, an attachment would lie for the breach of any kind of a contract, but such is not the effect of the statute. In the language of Willett & Burr v. Alpert, 181 Cal. 652, 185 P.2d 976, 'To hold otherwise would be simply to wipe out the statute and permit an attachment in every action for damages for a breach of contract, regardless of whether or not the contract be one for the direct payment of money.' Accord: California Packing Corp. v. Kato, 45 Cal.App. 491, 188 P. 57. Appellant says in his opening brief:

'It is submitted that the parties contemplated reaping their profits, if any, on the ventures in one of three ways: 1. By receiving the full amount of the purchase price of the homes constructed in money, 2. by taking trust deeds in lieu of money, or 3 by a partial payment in cash and the remainder by way of a second trust deed.' $This may possibly be so, but there is nothing in the contract or in the record to support it. It would appear more likely that the...