Welsh v. Woods ( 1963 )

OPINION OP THE COURT BY

MIZUHA, J.

Plaintiff’s amended complaint contained a first count based on quantum meruit for professional services rendered. He alleged that he had “rendered professional services to defendant of a reasonable value of $50,000 of which sum defendant has paid plaintiff the sum of $6,000, leaving a balance due and owing plaintiff the sum of $44,000 * * Upon the argument plaintiff submitted his case on this count.

Garnishee process was served upon Woodson K. Woods, III, First National Bank of Hawaii and Walston & Go., Inc. They filed disclosures, only that of the bank showing anything on hand. Defendant then moved to discharge the garnishees on the ground that the claim of plaintiff was unliquidated in its nature and therefore, not the type of action that will support a garnishment. Plaintiff appeals from the order granting the motion to ■discharge garnishees.

Historically, an action based on quantum meruit was an action to enforce an implied contract. “* * * One who had incurred a detriment at the request of another, by rendering service, * * * with the reasonable expectation ■of compensation * * * was as fully entitled, in point of justice, to enforce his claim at law, as one who had acted in a similar way upon the faith of an express promise. * * *” Ames, History of Assumpsit, 2 Harv. L. R. 53, 60 (1888). From its very origin, garnishment has most often been authorized in personal actions founded on contract, express or implied. Wise & Jackson v. Nott, 283 S.W. 1110, (Tex. Civ. App.). See Turner v. Schwarz, 140 Md. 465, 117 Atl. 904.

The question before us on this appeal is whether our garnishment statute R.L.H. 1955, § 237-1 (Supp. 1961) permits garnishee process to be issued in conjunction with an action based on quantum meruit for professional services rendered.

Our statute, as far as material, is as follows:

“When any goods or effects of a debtor are concealed in the hands of an attorney, agent, factor or trustee (in this chapter jointly and severally included in the term ‘garnishee’), so that they cannot be found to be attached or levied upon, or when any debt is due from any person (also included under the term ‘garnishee’) to a debtor, or when any person has in his possession for safekeeping any moneys of the debtor, any creditor may bring his action against a debtor and in his petition for process, or by subsequent ex parte motion and amendments of the complaint at any time before judgment, may request the court to insert in the process a direction to the officer serving the same to leave a true and attested copy thereof with the garnishee * * (Emphasis added.)

The remedy of garnishment under our statute is limited to actions brought by a “creditor” against his “debtor.” The relation of creditor and debtor necessarily implies the existence of a debt. “Ordinarily, a ‘debt’ implies a sum of money owing upon a contract, express or implied. * * * In its more general sense it is defined to be that which is due from one person to another, whether money, goods, or services, and which one person is bound to pay to or perform for another. In ordinary parlance it means any claim for money, and a debt is properly said to be due, in the sense of owing, when it has been contracted and the liability of the debtor fixed.” Henriques v. Vinhaca, 20 Haw. 702, 708.

In Fisher v. Consequa, 2 Wash. C.C. 382, 9 Fed. Cas. 120, 121, the court stated: “* * * A promise, whether express or implied, to pay as much as certain goods or labor are worth, or as much as the same kind of goods may sell for on a certain day, or at a certain market; or to pay the difference between the value of one kind of goods and another, creates in common parlance, a debt; and the person entitled to performance does not speak of his claim, as for damages, but for a debt, to the amount which he considers himself entitled to. * * *”

In Roelofson v. Hatch, 3 Mich. 277, the court in reversing an order of the lower court which set aside a writ of attachment upon the ground that the writ was issued for unliquidated damages, said at page 279:

“* * * What is an indebtedness? It is the owing of a sum of money upon a contract or agreement and in the common understanding of mankind, it is not less an indebtedness that such sum is uncertain. The result of a contrary doctrine would be, to hold any liability which could only be the subject of a general indebitatus assumpsit, quantum meruit, or quantum valebant count in a declaration, such an indebtedness as could not be the subject of this remedy by attachment. * * *”

In Phelps v. Columbia Phonograph Broadcasting System, Inc., 255 Ill. App. 294, 296, an original attachment was brought against the defendant for legal services rendered under a statute which provided: “* * * That in any court of record having competent jurisdiction, a creditor may have an attachment against the property of his debtor, or that of any one or more of several debtors, when the indebtedness exceeds $20, * * *.” In reversing the lower court’s order quashing the writ, which was based on defendants motion that the claim was for unliquidated damages, the appellate court said at pages 304-05:

“* « * jf the defendant’s contention is correct, then a creditor is barred from the benefit of original attachment under any contract for goods sold, or work or labor done, where there is no express agreement as to price or compensation, although the value of the goods or services is clearly ascertainable by competent, legal evidence. The mere fact that witnesses might differ as to the value of the goods or services should not deprive a creditor of the benefit of the act, as the law fixes a standard for determining the value of the goods or services. The defendant’s construction, in our opinion, does violence to the plain intent of the act, and in practice would emasculate what was intended to be a useful remedy for a creditor.”

Defendant contends that the claim of the plaintiff is unliquidated, and that garnishment will not lie in this type of action. To support her contention that garnishment does not lie in the action brought by plaintiff, defend-ant relies on Henriques v. Vinhaca, supra, wherein the plaintiff sought to recover damages in the amount of •f1,000 for an alleged breach of an express written agree-ment to assign a lease. In holding that under our garnishment statute the legal obligation to answer by way of -damages does not create the relation of creditor and debtor, this court stated at page 709: “* * * it is obvious that the claim sued upon does not possess the requisite certainty, nor has it any of the essentials of a debt. The claim itself does not furnish any standard or means of •arriving at the liability, if any, of the defendant. It is purely speculative, uncertain and contingent.” See Hale Bros. v. Milliken, 142 Cal. 134, 75 Pac. 653; Bringas v. Sullivan, 126 Cal. App. 2d 693, 273 P.2d 336. Since the case was heard on demurrer no facts were furnished as to the damages sustained. However, the significant point is that the claim was purely one for breach of an executory contract. The holding of the case was that garnishment does not lie for “unliquidated damages.”

The instant case which is a claim for an indebtedness by reason of plaintiff’s performance of professional services is distinguishable from Henriques v. Vinhaca, supra, where the court said at page 710: “The claim not being a debt it follows, therefore, that the legal duty, if any, to respond in damages for the alleged breach of the instrument sued upon in this action, does not create the relation of creditor and debtor between the plaintiff and the defendant, within the meaning of the statute, * * Here, it is the implied promise to pay the reasonable value of the services rendered that gives rise to the creditor-debtor relationship between attorney and client. Although there was no express agreement as to the exact compensation to be paid for the professional services rendered by the plaintiff, the remedy of garnishment applies by the terms of the statute when there is this relationship of creditor and debtor between the plaintiff and defendant, and the amount of defendant’s liability, if any, can be determined by appropriate judicial procedure. Roelofson v. Hatch, supra; Austin Nat’l Bank v. Bergen, 47 S.W. 1037 (Tex. Civ. App.); Stiff v. Fisher, 2 Tex. Civ. App. 346, 21 S.W. 291; Thomas v. Buehler, 254 S.W.2d 223 (Tex. Civ. App.); Wise & Jackson v. Nott, supra. See Goldblum v. Ford Local No. 50, 319 Mich. 30, 29 N.W.2d 310. The fact that witnesses may differ as to the reasonable value of the services does not place the claim in a class that Avill not support garnishment. Evans v. Breneman, 46 S.W. 80 (Tex. Civ. App.). Cf., Phelps v. Columbia Phonograph Broadcasting System, Inc., supra.

Likewise, despite the objection that the claim was unliquidated, attachment has been permitted where it was found that the defendant was indebted to the plaintiff and the amount capable of ascertainment. Phelps v. Columbia Phonograph Broadcasting System, Inc., supra; Hale Bros. v. Milliken, supra; Hall v. Parry, 55 Tex. Civ. A6pp. 40, 118 S.W. 561; Force v. Hart, 205 Cal. 670, 272 Pac. 583; Wise & Jackson v. Nott, supra; Fisher v. Consequa, supra.

It is argued that the garnishment statute, unlike the attachment statute,¹ contains no provision for a bond. It does, however, provide for release of such part of the garnishee fund as may be “excessive in amount in comparison with the amount of the judgment that the plaintiff might obtain in the action,” leaving the garnishment applicable only to “a reasonable amount to be so secured * * *.» B.L.H. 1955, § 237-1 (d). Appellee contends that this “indicates that the legislature intended that garnishee process should issue only in support of actions to recover liquidated claims.” This does not follow. The statute vests in the court, not the clerk, the duty of making this determination. Something more than a routine comparison of amounts is contemplated, and this is borne out by the other provisions of the subsection.

It further is argued that since the fourth paragraph of B.L.H. 1955, § 6-59, provides in connection with defalcations by government employees that retirement system funds may be garnisheed “notwithstanding the fact that the claim in certain cases may be for an unliquidated amount or may sound in tort,” that constitutes recognition that under the general garnishment statute, chapter 237, the claim must be for a liquidated amount. A more likely explanation is that this language was used in order to make it unnecessary to determine the nature of the action, which may be brought in cases of failure to properly account for government property or funds as well as in cases of embezzlement or theft.

Richard D. Welsh and Howard K. Hoddick for plaintiff-appellant. A. William Barlow and H. William Burgess for defendant-appellee.

We are not concerned with the policy of the statute. Perhaps a bond should be required but that argument should be addressed to the legislature.

It was error for the court below to grant the motion to discharge the garnishees.

Beversed.

1 R.L.H. 1955, c. 233, part I.