gno.law

Babcock v. Briggs

California Supreme Court · No. 5559 · 1877-07-01 · Published · 52 Cal. 502

WILLIAM F. BABCOCK v. WILLIAM R. BRIGGS

Area
civil

Analysis

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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

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