I dissent.
The case comes up upon appeal from an order granting a motion to dissolve the attachment. Upon a decision of such a motion the court does not scrutinize the complaint and judge its sufficiency as rigidly as upon considering an order sustaining a demurrer thereto. "Unless the complaint shows upon its face that the plaintiff has no cause of action with the help of an amendment, the attachment should not be dissolved. If the complaint is defective merely, and can be made good by amendment, the plaintiff should be allowed to amend before the decision of the motion to dissolve; but if the complaint is incurable the attachment must be dissolved." (Hathaway v.Davis, 33 Cal. 168.)
The complaint in this action shows that the defendant, Alpert, had sold six hundred tons of iron rails and other property to the plaintiffs at the price of eight thousand dollars, *Page 665 which the plaintiffs had paid in full, and that the title to the rails passed to the plaintiffs at the time the price was so paid; that the plaintiffs obtained 425 tons of said rails and all of the other property, but that defendant failed to deliver the remaining 175 tons.
When the title passed to the plaintiffs in pursuance of the sale, the defendant became the mere bailee of the plaintiffs with respect to the property sold. His failure to deliver the 175 tons of rails amounted to a conversion thereof. In such a case it seems to be well settled that the bailor may waive the tort shown by the conversion and sue the bailee inassumpsit for the value of the property converted. (Hill v.Smith, 32 Vt. 433; Winside State Bank v. Lound, 52 Neb. 469, [72 N.W. 486]; Deere. v. Lewis, 51 Ill. 254; Davis v. Fish, 1 G. Greene (Iowa), 406, [48 Am. Dec. 387]; Lehmann v.Schmidt, 87 Cal. 20, [25 P. 161]. See, also, 1 Cooley on Torts, 164, note 27.) The theory upon which these decisions rest is that the law implies a contract in such a case on the part of the bailee to pay to the owner the value of the goods so converted. The facts stated in the complaint are sufficient to support an action of this character and consequently they are sufficient to show that the action is, or could be, by a sufficient amendment, based upon an implied contract for the direct payment of money. In such a case an attachment will lie.
If it be contended that the somewhat obscure allegation in the complaint to the effect that instead of there being six hundred tons of rails there were only 425 tons should be taken as an allegation that the remaining 175 tons had no existence, then the contract set forth, so far as the 175 tons of rails are concerned, would be a contract for the sale of property which had no existence. It was designated and specified property and, therefore, the contract of sale could not be fulfilled by the delivery of other rails procured elsewhere. The rule regarding a contract of sale of property which has not even a potential existence is that it is a void contract. (1 Mechem on Sales, sec. 199; Strickland v. Turner, 7 Exch. Rep. 217.) In that event, inasmuch as the plaintiff paid the price thereof, it necessarily follows that the defendant has received of the plaintiff whatever portion of the price was properly applicable to the 175 tons of rails which had no existence. In other words, the defendant has *Page 666 received from the plaintiff that amount of money for which he has rendered no consideration whatever, and a suit inassumpsit for money had and received could be maintained at common law. This would be a suit upon an implied contract for the direct payment of money, in which case an attachment would clearly lie.
It is true that apparently it has been decided in this state that an attachment will not lie where the action is inassumpsit upon the implied contract raised at common law in a case where the defendant had unlawfully received money belonging to the plaintiff. (Babcock v. Briggs, 52 Cal. 502.) But the decision in that case consists of but two lines, and it is difficult to determine whether it was placed upon the ground that no action on contract would lie in such a case as has just been stated, or whether it was placed on the ground that the complaint by ifs averments confined its scope to an action in tort. The statute allows an attachment in all cases of implied contracts for the direct payment of money. The word "direct" is apparently surplusage, for every contract for the payment of money would be a contract for the direct payment of money. The common law has always been in force in this state except as changed by statute. It is to be presumed that the term "implied contract," as used in the attachment law, was intended to include all cases where at common law a contract was implied. If this be not so, great confusion would result. If it is now proposed to limit the application of that section to cases where the contract is one implied from the evidence or to cases where there is an actual contract for the payment of money, though not expressly stated, and to exclude cases where the contract arises solely by implication of law, the matter should be clearly stated so that it would be generally understood. I do not believe that this was the intent of the statute.
Rehearing denied.
Angellotti, C. J., Lawlor, J., Wilbur, J., Lennon, J., and Olney, J., concurred. *Page 667