WALLACE E. C. STONE et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY et al., Respondents, 214 Cal. 272

RICHARDS, J. The petitioners apply for a writ of mandamus to compel the Superior Court in and for the County of Los Angeles, respondent herein, to make and enter its order granting the motion of the petitioners to discharge an attachment issued in an action pending in said court, entitled Grace Thorndike, Plaintiff, v. Wallace E. C. Stone and Joseph Wright, Defendants.

The complaint of the plaintiff in said action was in two counts, in the first count of which she alleged that she had been induced to purchase certain shares of stock from said defendants by certain alleged false and fraudulent misrepresentations, made by said defendants with intent to cheat, deceive and defraud said plaintiff; that said stock was of no value; that upon discovery of the fraud, she had given notice of rescission and had offered to return said stock, and had demanded back the consideration, which defendants refused to return.

The second count in plaintiff’s said complaint was in the form of an action for money had and received. It is conceded, however, that the cause of action set forth in each of said counts is the same. Upon the filing of the complaint in said action, the plaintiff therein sought and obtained a writ of attachment and caused the same to be levied upon the property of the defendant Stone, whereupon the defendant appeared’ in said action and moved the court, upon due and proper notice, for an order discharging said writ of attachment.

Accompanying the notice of motion was the affidavit of said Stone to the effect that said writ of attachment was not based upon any contract express or implied, existing between the plaintiff and said defendants, for the direct payment of money, either made or payable in the state of California or otherwise or at all, as required by

section 537 of the Code of Civil Procedure. The trial court denied the defendants’ said motion, whereupon defendants have applied to this court for a writ of mandate to compel the trial court to make its order granting their motion to discharge. We are of the opinion that this is a proper ease for the issuance of said writ.

The first count in the plaintiff’s complaint in said action clearly and unmistakably set forth a cause of action for equitable relief arising out of a transaction which she had been induced to enter into by certain false and fraudulent misrepresentations of the defendants in said action, which are set forth with much detail in the first count of her complaint, and upon which she based the exercise of her right of rescission and her right to a recovery of the money or property with which she had parted as a result of said false and fraudulent misrepresentations.

The cause of action thus set forth was essentially an action sounding in fraud and deceit and based upon her rescission of the transaction between herself and said defendants, undertaken by her upon the discovery of said fraud and deceit. Had the plaintiff’s complaint contained this first count only, it would seem to be beyond question that the plaintiff would not have been entitled to the issuance of a writ of attachment thereon. In the case of Hallidie v. Enginger, 175 Cal. 505 [166 Pac. 1], it was held by this court that, under the provisions of

section 537 of the Code of Civil Procedure, which limits writs of attachment to actions arising on contracts express or implied for the recovery of money only, the attachment cannot be issued in an action brought by plaintiff as trustee for the stockholders of a corporation which had forfeited its charter, to recover from the defendant the sums of money derived from proceeds of sales of stock through false representations, since the action would be an action ex delicto for fraud and not an action upon an implied contract for the direct payment of money.

The court in that case indulged in an exhaustive review of the eases involving the distinction between actions ex contractu and ex delicto, and cites as authority for its holding certain earlier decisions of this court to the same effect. (Babcock v. Briggs, 52 Cal. 502; Walker v. McCusker, 65 Cal. 360 [4 Pac. 206]; Mudge v. Steinhart, 78 Cal. 34 [12 Am. St. Rep. 17]; Bechtel v. Chase, 156 Cal. 711 [106 Pac. 81].) The fact that the plaintiff’s complaint in the case of Thorndike v.

Stone et al. contained two counts and that the second count therein was in the form of a common count for money had and received cannot be held to change the situation or to entitle the plaintiff to the issuance of a writ of attachment in said action, since her cause of action is admittedly the same in each count and is founded upon the facts set forth in detail in the first count of her complaint, from which it clearly appears that her only cause of action is one founded upon the defendants’ alleged fraud and deceit. The case of San Francisco Iron & Metal Co. v.

Abraham et al., 211 Cal. 552 [296 Pac. 82], would seem to be precisely in point as applied to the above situation. The plaintiff’s complaint in that action was in two counts. The first count specifically pleaded a cause of action based upon fraud and deceit. The second count pleaded a cause of action for moneys had and received. The defendants applied for and received an order discharging an attachment which the plaintiff had caused to be issued. The plaintiff appealed from said order, but without avail. This court affirmed said order upon the authority of the case of Hallidie v.

Enginger, supra, and upon the foregoing line of authorities, upon which that decision was based. The fact that the plaintiff in the Abraham case did not seek to rescind the contract alleged to have been fraudulently obtained is an immaterial circumstance not affecting the cause of action upon which the plaintiff sought to recover in two counts, but which, as the court aptly pointed out, were but different methods of pleading one transaction. The ease of Powers v. Freeland, 114 Cal. App. 146 [299 Pac. 736, 737], is also precisely in point.

In that case, also, the plaintiff’s complaint contained several counts, one of which was in the form of an action for money had and received.

With respect to that phase of the case, the appellate court, in affirming the order dissolving the attachment, said: “ . . . where a cause of action for money had and received is joined to other causes of action which sound in tort and there can be no doubt that they are identical arising out of the same transaction, the nature of the action is to be determined not by the general allegations of the count for money had and received, but by the more specific allegations contained in the other counts wherein the real character of the action appears with greater certainty”.

From the foregoing review of the authorities, it would seem to be clear that the plaintiff’s real cause of action in the case of Thorndike v. Stone was an action sounding in fraud and deceit and that to such a cause of action the provisions of

section 537 of the Code of Civil Procedure, providing for the issuance of writs of attachment in proper cases, can be given no application. It follows that the petitioners herein are entitled to the issuance of a writ of mandate to compel the superior court, respondent herein, to discharge the writ of attachment illegally issued by it in said action. Let the writ issue as prayed for. Shenk, J., Curtis, J., and Waste, C. J., concurred.