Jacobs, Malcolm & Burtt v. Northern Pacific Railway Co.

This is an appeal by the defendant Railroad Company from an order denying a motion to dissolve an attachment, issued in an action brought by plaintiff to recover of and from the defendant the sum °of $371.25, as damages, for the breach of a contract,-wherein, it is alleged, defendant agreed to give “standard ventilation” to a„ shipment of 403 sacks of potatoes which were being transported by defendant, as the initial carrier, from Wapato, Washington, to San Francisco.

Defendant is a foreign corporation and the issuance of the writ of attachment was predicated upon an affidavit, filed on behalf of plaintiff, in which it was stated, in substance, that the action was upon contract .against a defendant not residing in the state.

The single question presented by the appeal is whether the action is upon contract or in tort. If it be an action in tort, the remedy of attachment does not lie (Hallidie v. Enginger, 175 Cal. 505 [ 166 Pac. 1 ]; Mudge v. Steinhart, 78 Cal. 34 [ 20 Pac. 147 ]; Code Civ. Proc., sec. 537); and if any doubt arises as to the nature of the action, it should be construed as one in tort. (10 Cor. Jur. 1026.) But if the action be one upon contract, appellant…