Babcock v. Briggs
Cases that cite this one
4 later published cases cite this decision.
- Stone v. Superior Court (Cal. 1931)
- Willett & Burr v. Alpert (Cal. 1919)
- Hallidie v. Enginger (Cal. 1917)
- Tabor v. Big Pittsburg Consolidated Silver Mining Co. (U.S. Circuit Court for the District of Colorado 1883)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
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.
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.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.