¶1It is held in Hawley v. Delmas, 4 Cal. 196, and cases following it, that an affidavit alleging, in the language of the statute, that the indebt-, edness is “ upon a contract express or implied,” is insufficient, because, being in the alternative, it fails to show that it is upon either an express or an implied contract. An account stated may be “ a contract express or implied.” Therefore an affidavit alleging that it is an account stated is identical with the one held to be bad, *180because it in effect avers that the indebtedness is upon either an express or an implied contract, and is directly within the cases referred to. But in my judgment, the affidavit in Hawley v. Delmaswas sufficient under the statute. It is totally immaterial whether the contract is express or implied, as the right of the attaching creditor is precisely the same in either case. The fact of the indebtedness upon contract is the material thing to be alleged; therefore, to say that the defendant was indebted upon contract, éxpress or implied, should, in my judgment, have been held sufficient.
¶2In the case of Klenk v. Schwalm, 19 Wis. 111, such an affidavit was held to be sufficient under a statute precisely like our own. For the reason that I do not concur in the rule laid down in the earlier cases referred to, I am of opinion that the affidavit here is sufficient, but if those cases are to be adhered to, I am unable to see how we can do otherwise than to hold the affidavit to be insufficient.
¶3I dissent, and agree with the following opinion written by Commissioner Hayne.
¶4— I think Hawley v. Delmas is in point; and that under that decision the affidavit must show whether the contract is express or implied. If the only thing necessary to be shown was that there was a contract, the alternative words in the affidavit could have been, and presumably would, have been, rejected as surplusage. The statement that the indebtedness was on an account stated, does not show whether the contract was express or implied because an account stated may be an implied contract. (Hendy v. March, 75 Cal. 566.) Unless Hawley v. Delmas is to be overlooked., I think the order appealed from should be reversed.
¶5Rehearing denied.