De Leonis v. Etchepare

Citations

• 120 Cal. 407
• 52 P. 718
• 1898 Cal. LEXIS 780

Syllabus

<p>Attachment—Principal and Agent—Prayer fob Accounting.—In an action by a principal against his agent, the plaintiff’s right to an attachment for moneys specifically alleged to have been received by the agent, and for which judgment is demanded, is not defeated merely because the complaint contains a further prayer for equitable relief for an accounting for other moneys received by the agent which were unknown to the principal.</p> <p>Id.—Contract—Implied Promise to Pat.—The relation between a principal and agent is founded on contract, and the law implies a promise by the latter to pay over moneys received by him to the principal upon demand; and in an action to recover a specific amount, based upon such implied promise, an attachment may issue.</p> <p>Id.—Amount of Liability.—It is not necessary in order to give a right of attachment, that the amount in which the defendant may be liable should appear upon the face of the contract or instrument by or from which the liability is to be determined.</p> <p>Id.—Amount Stated in Affidavit and Wbit—Setoff and Countebclaim.— Upon a proper construction of sections 538 and 540 of the Code of Civil Procedure, the fact that the affidavit for an attachment states an amount as due which is less than the demand of the plaintiff as stated and prayed for in the complaint, and that the writ is issued for the lesser amount, does not render the writ irregularly issued. It will be assumed that the difference is the result of an allowance made by the plaintiff for any possible setoff or counterclaim in favor of the defendant, which he is required to deduct under section 538.</p> <p>Id.—Amount Stated in Complaint.—The requirement of section 540 of the Code of Civil Procedure, that the amount stated in the writ “must be stated in conformity with the complaint” does not necessitate that the amounts, as so stated, should be identical.</p>