Babcock v. Briggs
WILLIAM F. BABCOCK v. WILLIAM R. BRIGGS
- Area
- civil
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
Injured party may waive tort, and sue in assumpsit. (Fratt v. Clark, 12 Cal. 90; Roberts v. Fvans, 43 Cal. 382; Tuite v. Wakelee, 19 Cal. 692; Caussidiere v. Beers, 2 Keyes, 198; Civil Code, sec. 1621.)
Cope & Boyd, for Respondents.
The action is not upon a contract within the meaning of the statute. (Code of Civil Procedure, secs. 537, 538.) The gravamen of the action is a tort—a wrongful conversion of the property and money of the plaintiffs. There is no allegation of any promise or undertaking on the part of the defendants, and the idea of a contract is expressly negatived by the averments of the complaint.
By the Court :
The facts stated in the complaint do not make a case which would support a writ of attachment under the provisions of the Code of Civil Procedure.
Order affirmed. Remittitur forthwith.
Cites, in this corpus
- Roberts v. Evans No. 2,924 · 1872-04-15
- Tuite v. Wakelee · 1862-07-01
Cited by
- Stone v. Superior Court Docket No. L.A. 12853. · 1931-11-02
- Willett & Burr v. Alpert S. F. No. 8630. S. F. No. 8631. · 1919-12-08
- Hallidie v. Enginger S. F. No. 7269. · 1917-06-21