Mitchell v. McNabb , 58 Me. 506 ( 1870 )

Appleton, C. J.

This is an action of debt. The writ is dated Oct. 14,1870. The declaration sets forth an agreement, under seal, signed b3r the defendant, in and by which he “ agreed not to carry on the boot and shoe business in the city of Portland for one year,” from May 31, 1870, and an averment that from the first day of July he “ continued to carry on the boot and shoe business in said city of Portland to the day of the purchase of this writ.” To this the defendant demurred, the demurrer was sustained, and the plaintiff excepted. The question presented is whether debt is maintainable.

The declaration sets forth no promise to pay any money under any terms or conditions, but simply an agreement to abstain from selling boots and shoes at a particular place and for a stipulated time, and a violation of such agreement. The damages in such' case must obviously be uncertain and unliquidated.

Debt lies when one is entitled to receive a certain and liquidated" sinn of money, or in case of a bond for the payment of money, or the performance of some act under a penalty, or for goods sold and delivered, etc. “Debt,” remarks Richardson, C. J., in Lowell v. Bellows, 7 N. H. 391, “ is the proper action, whenever the demand is for a sum certain, or is capable of being readily reduced to a certainty ; but it is not the proper remedy when the demand is rather for unliquidated damages than for money, unless the performance of the contract is secured by a penalty. 1 Chit. PI. 101.” “ The true

test,” remarks Story, J.4 in Bullard v. Bell, 1 Mason, 543, “ is, therefore, whether the sum to be recovered has, upon the contract itself, a legal certainty.” Debt “ lies only for the recovery of a sum of money in numero, and not where the damages are unliquidated and incapable of being reduced by averment to a certainty.” 1 Chit. PI. 113. Debt will not lie on a contract of indemnity against unliquidated or unascertained damages. Flannagan v. Com. Ins. Co., 1 Dutch. (N. J.) 506; Rutan v. Hopper, 5 Dutch. (N. J.) 112. As the action of debt is for the recovery of a sum of money, the breach or cause of action complained of must necessarily originate out of the non-payment of the money previously alleged to be payable. But here there was not and could not be the allegation of any sum of money which the defendant was bound to pay, and for the neglect to pay which he should be held responsible in damages. Exceptions overruled.

Cutting, Kent', Walton, and Tapley, JJ., concurred.