Mindlin v. Saxony Spinning Co. ( 1918 )

Opinión by

Mr. Justice Walling,

This is an action of foreign attachment in assumpsit by a New York firm against a North Carolina corporation, for alleged breach of contract for sale of cotton yarn. No service was had on defendant; but, when ruled by the garnishee, plaintiffs filed an affidavit of cause of action, which the court below held insufficient and dissolved the attachment; wherein we see no error. The affidavit must set out a good cause of action and such facts as give the court jurisdiction, and must not be ambiguous nor depend upon conjecture or inference. See Hallowell v. Tenney Canning Co., 16 Pa. Superior Ct. 60. The object of a writ of foreign attachment is to compel the appearance of defendant; and, to authorize such writ, he must have property within the jurisdiction of the court; otherwise there is nothing to attach and no means of compelling an appearance or of securing plaintiff’s claim. See Raymond v. Leishman, 243 Pa. 64; Pennsylvania Railroad Company v. Pennock, 51 Pa. 244; also opinion of Sitarswood, P. J., in Delaware Mutual Insurance Co. v. Walker, 1 Philadelphia 104. The first object of such proceeding is to seize the property of the absent debtor; when there is none, the action falls. To support the writ, it is as necessary that defendant have proper ty within the jurisdiction as that he be beyond it. Both are essential and must be averred. Where the writ has been served, it must appear in the affidavit that the property attached, is that of the defendant. It is as possible to ascertain the ownership of property as the whereabouts of a defendant. It does not follow, because such writ binds property thereafter coining into the hands of the garnishee, that it can be sustained without something-in the first instance to attach. The reason for the rule is well illustrated by the court below: “Here we have a citizen of the State of New York issuing an attachment in the State of Pennsylvania against a defendant resident-in the State of North Carolina, summoning as garnishee a third person who does not appear to have in his possession any property .belonging to defendant. If this case bfe permitted to- proceed upon the paper filed by plaintiffs, a judgment may be entered against defendant for want of an appearance and damages, assessed in a sum of upwards of $12,000; that judgment will appear in the records of this court, and its effect upon defendant’s credit will be the same as if a judgment had been obtained in an ordinary personal action in adverse proceedings. Thus a creditor would, to all practical purposes, be able to compel nonresidents of every state in the union to appear in our courts, even if there was not within the jurisdiction of our courts, at the time the attachment issued, any property belonging to their debt- or.” The absence of averment as to defendant’s property may be treated as formal and supplied by amendment: Hallowell v. Tenney Canning Co., supra; Schueck v. Freeman, 55 Pa. Superior Ct. 38.

There are more serious objections. The affidavit purports to set out a claim for $12,417.21, for damages on account of defendant’s failure to deliver cotton yarn, in accordance with a certain contract based on plaintiffs’ order, viz:

“New York, Sept. 28,1914.

“Copy.

“Saxony Spinning Co.,

“Lincolnton, N. C.

“Gentlemen : Kindly enter our order for goods mentioned below. To be delivered as follows:

“Deliveries to commence upon completion of previous order. “Yours truly,

“Midian & Rosenman.”

Then follows a description of the goods in the language of the business, and on the margin the words, “To quantities 50,000 lbs.” The affidavit avers that, “Said order was duly accepted by defendant and partial deliveries thereunder, to wit: 39,236 pounds, were made to plaintiffs and paid for by plaintiffs,” but does not state when or how accepted, whether in writing or by parol, nor when the partial deliveries thereunder were made. The allegation as to due acceptance of the order is a legal conclusion. There is no averment as to when if ever the deliveries under the previous order were completed, and there is nothing to show when or in what amounts the yarn mentioned in the above quoted order should have been delivered. The affidavit avers that on May 15, 1917, defendant finally and unequivocally refused to deliver the balance of the yarn; but that is a conclusion and the real facts are not set out and it does not appear whether such alleged refusal was oral or written. The measure of damages would be the difference between the market price and the contract price at the time and place of delivery. See Hauptman v. Pa. W. Home for Blind Men, 258 Pa. 427. Here there is nothing to show when the goods should have been delivered or what the market price then was; hence, no- basis for assessment of damages. The affidavit sets out the market price on one day only, to wit, May 15, 1917. But there is nothing to indicate that it was the time called for in the contract for the delivery of all or any of the goods in question. Plaintiff could not change defendant’s liability by demanding a delivery at a time different from that named in the contract. The defects above mentioned, and other uncertainties in plaintiffs’ affidavit of cause of action, fully warranted the order of the court below dissolving the attachment. It is not necessary to refer separately to the other contract set out in plaintiffs’ claim as it involves only $32.45 and some of the defects to which we have called attention apply equally to that branch of the case.

The assignments of error are overruled and the order dissolving attachment is affirmed. .