Ward v. Begg ( 1854 )

By the Court, Mitchell, J.

This motion comes on upon an appeal from an order discharging an attachment. The plaintiff Parker swore that the defendant Begg agreed that if the plaintiff would sell him goods on credit, and also guaranty his liability to another firm to the amount of $1302.88, he would ship and consign to them all the fish which he should become possessed of in his business in Nova Scotia, as security for the guaranty and the goods to be sold to him. That the plaintiffs sold the defendant the goods on credit, and became guarantors to the other firm, and that the defendant has since sent fish from Nova Scotia, which he then had in Ms business, to New-York, but although requested, he refuses to consign them to the plaintiffs ; and that the defendant is a non-resident of the state. On this an attachment was issued. The defendant denies the agreement to consign to the plaintiffs. But it is confirmed by a son of the other plaintiff. The special term discharged the attachment, as is stated, on the ground that as the credit on the sale of the goods had not expired, there was no such cause of action as authorized an attachment.

There were two contracts ; one to pay for the goods when the credit should expire, and the other to give the plaintiffs security for the payment of the goods and for their guaranty by sending the defendant’s fish and consigning it to the plaintiffs. This last part of the contract the defendant has broken, and he was liable to be sued for the breach of it, as soon as it was broken. It is as if he had procured a loan of $1000 payable in a year, and had promised on demand to secure the payment by a mortgage on his lands. If he refused (when required) to give the mortgage, he could be sued for that violation of his agreement, and a specific performance be enforced; or the same effect be obtained by a prompt judgment for the amount loaned. Here he agreed to give, not a mortgage on his lands, but what is nearly the same, a lien or hypothecation on his fish, and the plaintiffs are entitled to the same relief as if the agreement were for real estate security.

[New-York General Term, June 1, 1854.

If a judgment were obtained before the credit expired, the courts have sufficient equity powers over their own judgments to postpone the collection of the amount of the judgment until the credit should expire, or to vacate it if the security agreed on should be given : thus justice would be done to all parties.

It is not necessary, under the code, that the plaintiffs should have a cause of action for the payment of money merely, to have an attachment; it is enough that “a cause of action exists against the defendant,” and that the amount of the claim, and the grounds thereof, are stated. (Code, § 229.) In such a case as this the amount of the claim is the debt payable and the amount of the guaranty; for to that extent the defendant had promised to secure the plaintiffs ; and the action is properly brought for damages for a breach of that promise, or for a judgment to operate as such security as was agreed on.

Order of special term reversed, without costs.

Mitchell, Roosevelt and Clerke, Justices.]