Penniman v. Sweetzer

2 Cal. Dist. Ct. 146

• Court: San Fransisco District Court
• Decided: February 15, 1858
• Status: Published

Opinion

HageR, J.

— The plaintiff, residing in the city of New York, forwarded goods, etc., to defendants, merchants, residents of San Francisco, to be sold on commission, and proceeds to be remitted to plaintiff. Defendants sold the goods, and forwarded a stated account, containing the net proceeds of the sales, the charges against them, and the balance due the plaintiff.

Motion is now made to discharge plaintiff’s attachment, issued at the commencement of the action, on the ground that plaintiff has not sued upon a contract which is made, or is payable in this state.

There was a breach of the original contract, on the part of the defendants, when they forwarded the account showing the amount due, and omitted to remit the money to plaintiff.

The account is dated San Francisco, November 30,1857, and creates a liability, independent of the original liability, that may, per se, be a substantive cause of action. The complaint alleges an indebtedness found due upon the account stated, and upon the affidavits submitted, taken in connection with the allegations of the complaint, I am of the opinion that it sufficiently appears that the action is upon, an implied contract for the direct payment of money, which contract is made and is payable in this state, within the meaning of our statute.

Motion denied.