Coats v. Arthur , 5 S.D. 274 ( 1894 )

Corson, P. J.

The plaintiff brought an action against the defendant to recover damages for breach of contract. The defendant being a non resident, the plaintiff sued out an attachment. The affidavit for the attachment (ommitting the formal parts) is as follows: “That a cause of action exists against the defendant and in favor of the plaintiff herein, and the amount of said plaintiff’s claim therein is nine hundred and sixty-eight dollars, and the ground thereof is as follows: That is to say, that on or about May 9, 1891, at Chicago, Illinois, the defendant, for a valuable consideration, sold, and conveyed by warranty deed, to tin plaintiff, the following premises situated in Chicago, Cook county, Illinois, to-wit, lots 19 and 20 in block 8, in Eames’ subdivision of the northeast quarter of the northeast quarter of section 17, in township 38 of range 14 east of the 3rd P. M., and then and there agreed to and with the plaintiff to complete the buildings upon said premises, and to surrender to the plaintiff the keys and possession of said premises, not later than May 12, 1891; that the defendant hereafter failed and neglected to complete said buildings, and to surrender to the plaintiff the keys and possession of said premises, until August 1, 1891, at which last-named date the same were delivered to the plaintiff, and thereby the plaintiff was deprived of the use and rent of said premises' from and after May 12, 1891; that the rental value of said premises from and after May 12, 1891, was and is the sum of $180 per month, amounting to $474 to August 1, 1891; that since said last named date, by reason of the unfavorable season of the year for that purpose, the plain tiff has not been able, although he has made diligent efforts therefor, to rent said premises for so large a sum,by $130 per month, as he would if the same had been delivered to him at the time agreed, to plaintiff’s damage in additional sum of $494 from August 1 to November 24, 1891, making the total amount of damages sustained by the plaintiff from May 12 to November 24, 1891, by reason of defendant’s failure to complete said buildings, and to surrender the keys and possession of said premises to plaintiff, at the agreed time therefor, to-wit, May 12, 1891, the sum of $968; and that the defendant, L. J. Arthur, is not a resident of this state, but resides at the city of Evanston, county of Cook, and state of Illinois. ” The defendant appeared specially, and moved the court to dissolve and discharge the attachment upon the following grounds: ‘■‘(1) That the affidavit upon which said attachment was issued does not state or show a cause of action against defendant in said action, arising on contract for the recovery of money only, or for the wrongful conversion of personal property, nor the grounds thereof. (2) That the court did not have jurisdiction to issue said warrant of attachment. (3) That said attachment was not issued in any of the cases in which the statute authorizes the issuance of a warrant of attachment. (4) That there is no affidavit in said action, required by the statute for the issuance of a warrant of attachment.' (5) That the court, in said action, has no jurisdiction over the defendant, or over his property. Said motion will be made upon the affidavit for the attachment, and upon all the other papers filed and of record in said action.” The learned counsel for the appellant very fairly states the question presented by this appeal as follows: “It is not claimed that the foregoing statement of facts shows an action for the wrongful conversion of personal property, but it is claimed by the counsel for. respondent in this case that said statement does show an action arising on contract for the recovery of money only, and the court below so held. The appellant denies this, and claims that said statement does not show an action arising on contract, for the recovery of money only, and this is the only contention in this case.” The question presented is an important one, and involves a construction of the statute of this state upon the subject of attachments.

Section 4993, Comp. Laws, provides 'that: “In an action arising on contract for the recovery 6f money only; or, in an action for the wrongful conversion of personal property, * * * the plaintiff * * * may have the property of such defendant * * * attached.” And section 4995 provides that: “The warrant may issue upon affidavit stating: (1) That a cause of action exists against such defendant, specifying the amount of the claim and the ground thereof.” What is the proper construction to be placed upon the language, ‘ ‘in an action arising on contract for the recovery of money only,” taken in connection with the statement required in the affidavit, “specifying the amount of the claim and the grounds thereof?” Counsel for appellant contend that as the language, ‘ ‘in an action arising on contract for the recovery of money only, ” is used in section 4894, Comp. Laws, relating to summonses, distinguishing between the two classes, has been construed by the courts of New York, the same language in the attachment law should receive the same construction. But the courts of New York, under an attachment law identically the same as our own, prior to its amendment, held that the language as used in the attachment law, should not be controlled by the construction of the same language in the law relating to summonses; and in thus holding, I think, that court was correct. The objects the two statutes were designed to accomplish are very different, and while, in the one case, the language might very properly be strictly construed to carry out the intention of the legislature, in the other - the language might properly be given a broader and more enlarged construction, to carry out the intention of the lawmaking power. In Lawton v. Kiel, 34 How. Pr. 465, Judge Ingrahm says: ‘‘I do not think the cases which have been decided as to the form of the summons should be considered as controlling in regard to the issuing of attachments.” In U. S. v. Groff, 67 Barb. 304, Daniels, J., speaking for the court upon this question, says: “Very different considerations, required by the history and object of the section providing for what demands attachments may be issued, have been applied to its construction. To promote the efficiency of that remedy, it has been held to include actions on contracts for the recovery of even unliquidated damages, where a proper disclosure of the grounds of the claim supplies practicable means for determining its amount. Lawton v. Kiel, 34 How. Pr. 465; Clews v. Railroad Co., 2 Hun. 379. And this demand is within the section, under that construction.” It appears, therefore, that in that state from the decisions of which, upon the subject of the summons, the counsel for appellant quote mainly in support of their contention, the decisions do not recognize the rule contended for, but clearly indicate that the phrase in the attachment law is to be differently construed. It will be observed that the language used in the attachment law of this state is broad and comprehensive enough to include all actions on contract for the recovery of money only, whether the damages are liquidated or unliquidated. There seems to be no limitation, other than that the action must be one arising on contract, and be for the recovery of money only. But in my opinion this language must be construed with reference to the statement to be made in the affidavit, and that the section relating to the affidavit does further limit the language used to claims, the amount of which can be definitely specified. The claim must, therefore, be for some definite, ascertained amount, or an amount capable of being definitely ascertained and made certain by the contract and the statement in the affidavit. This is further evidenced by the third subdivision of section 4995, which provides for an attachment when it appears “that the debt was incurred for property obtained under false pretenses. ” In this subdivision the term ‘ ‘debt’ ’ is evidently, used as synonymous with “claim,” in the first subdivision. “Arising on contract,” therefore, must, I think, be construed to mean a debt or claim ascertained or ascertainable by reference to the contract, or that can be definitely fixed by the rules of law and which is made to clearly appear by the statement in the affidavit of the grounds of the claim. This would include all claims for damages, in which, from the contract, and facts stated in the affidavit, a court, on applying the lawr, can definitely determine the amount which plaintiff is entitled to recover. In such a case the plaintiff can specify definitely the amount of his claim; and it would exclude all cases where the amount of the claim can be determined by no fixed rule of law, but is to be determined entirely by the opinion of a court or jury. An action for breach of contract of marraige well illustrates the latter class of cases. No court, from the facts stated in the affidavit, could determine by any known or fixed rule, the amount the plaintiff was entitled to recover. The contract being established, no facts could be stated, or evidence offered, that would enable the court to determine the amount which the plaintiff would be entitled to recover, under any known, or fixed rules of law. Damages might be given for any sum within the ad damnum clause. It is a question of damages, purely, governed by no definite or fixed rules, and therefore no attachment will lie in such an action. This is also well illustrated ,in the case of Wilson v. Manufacturing Co., 88 N. C. 5. That was an action upon a contract made by the defendant to furnish the plaintiff buggies to sell, which the defendant failed to. perform. The plaintiff brought an action for the breach, claiming $1,000 damages. An attachment was issued, and motion made to discharge the same. The motion was sustained, the court, in its opinion saying: “The rule to be deduced from that case- is-that an attachment may be had in support of any demand arising ex contractu, the amount of which is ascertained or is susceptible of being ascertained by some standard, referrable to the contract itself, sufficiently certain to enable the plaintiff to aver it in his affidavit, or to a jury to find it; but not so if the action be one for unliquidated damages in which the contract alleged furnishes no rule for ascertaining them, but leaves the amount to remain altogether uncertain until fixed by the jury, without any definite rule of law to direct them. The plaintiff in this action seeks to recover compensation for the loss of such profits as he conjectures he might have derived from selling buggies, as agent for the defendant, had they been furnished him according to the terms of the contract. It is therefore a case of purely uncertain damages, with no standard furnished by the contract itself, or fixed rule of law, for ascertaining them; and it is impossible to suppose a case further removed from the provisions of the statute than it is.”

A reference to a few of the adjudicated cases will illustrate the principles upon which attachments are permissible in actions to recover unliquidated damages. Lawton v. Kiel, 51 Barb. 30, 34 How. Pr. 465, was an action to recover damages for the breach of a contract on the part of the defendant to purchase for the plaintiff sound corn; and the breach complained of was that the corn purchased was not sound, but heated and spoiled. It was contended in that case that an attachment could not be maintained, as the'® damages were unliquidated. But the court held the attachment was properly issued, saying: “The claim arises on contract, and the amount claimed is a fixed amount, being the difference between the amount paid and the amount at which it was sold. ” A court, therefore, with the contract before it, showing the amount paid, with proof of the value of the corn delivered, ■ or for which it was sold, could determine the amount the plaintiff was entitled to recover, and the plaintiff could therefore state the amount in bis complaint at a fixed and definite sum. This case was followed in Clews v. Railroad Co., 2 Hun. 379. Carland v. Cunningham, 37 Pa. St. 228, was an action for damages for the breach of an agreement. In that case the court says: “We are all of opinion that the demand was the subject of foreign attachment. It was capable of being reduced to certainty by a definite standard, and this is all that is required (Clark v. Wilson, 3 Wash. C. C. 560, Fed. Cas. No. 2,841), for ‘id certum est quod certum recldi potest.’ Clearly, the amount, after the payment of the execution of Coit v. N. & E. Connelly, and the judgment of the defendants, out of the goods (they being chargeable with them as if sold to them), would be what the plaintiff would be entitled to. These sums were ascertained and fixed, and the value of the goods over and above their amounts, with interest from the conversion of the goods, would define the interest of the plaintiff in them. This he could recover, but nothing more, in this attachment. He could recover nothing by way of damages for loss of the advantages of the arrangement.” Habler v. Burnharth, 115 N. Y. 459, 22 N. E. 167, was an action to recover damages for a breach of warranty of personal property. An attachment was issued and held proper, the court saying: “The rule of damages, upon the facts stated, is the difference in value between the beans of the kind or quality of the sample, and those of the kind or quality delivered.” This decision, it is true, was made upon an attachment law slightly different from the one that we are now considering, and different from the former law of the state of New York, of which ours is a copy, but the principle in both is substantially the same. In Connecticut, under a statute providing that a creditor may attach the property of his debtor for any debt, it was held that an attachment would lie in an action to recover for a breach of a contract to tow safely certain sawlogs of the plaintiff from New York to New Haven, which, it is alleged were lost. The court said the value of the logs lost constituted a debt, and that the rule of damages was certain, namely, the value of the logs lost. Sawmill Co. v. Fowler, 28 Conn. 103. The court, in that case, with the contract and the proof of the value of the logs lost, could determine definitely the amount which the plaintiff was entitled to recover, and the plaintiff could specify definitely the amount of his claim. In Roelofson v. Hatch, 3 Mich. 277, the court says: “But, again, there are many contracts where, although the damages are not liquidated in the contract, yet, by well established rules of law, they are capable of being ascertained definitely upon proof of the facts; and to hold that in all this class of cases the plaintiff is debarred of this remedy would be to defeat, in a great measure, the purposes sought to be secured by its enactment. The plaintiff is required to swear that the defendant is indebted to him upon contract, express or implied, and to state the amount of such indebtedness, as near as may be, over and above all set-offs. * * * Without fully deciding this point, which is not necessarily raised in this case, we see no reason why a demand arising ex contractu, the amount of which is susceptible of ascertainment by some standard referrable to the contract itself, sufficiently certain to enable the plaintiff, by affidavit, to aver it ‘as near as may be,’ or a jury to find it, may not be a foundation of a proceeding by attachment. See Fisher v. Consequa, 2 Wash. C. C. 382, Fed. Cas. No. 4,816. Clark v. Wilson, 3 Wash. C. C. 560, Fed. Cas. No. 2,841. In the present case the contract furnishes such standard, equally as does any contract for goods sold, or work or labor done, without express agreement as to price or compensation.” This case would be much more satisfactory if it contained a statement of the facts, or a statement of the nature of the contract, but the language of the court so clearly expresses what I regard as the true rule that I have quoted from it. One further authority will suffice; Dunn v. Mackay, 22 Pac. 64, 80 Cal. 104, was a case recently decided by the supreme court of California, in which an attachment was held to have been properly issued. In that case the defendant had sold to the plaintiff a tract of land, and guarantied that he would sell it within the year, for him, for $12,500. An action was brought for the breach of the contract, the plaintiff alleging that at no time during the year could the land have been of a value exceeding $9,000, and demanding judgment for $3,500 damages. An attachment was issued, and on motion it was dissolved by the lower court. On appeal this order was reversed, the court saying: “Therefore, the simple question is whether an attachment properly issued upon a complaint which, upon its face, showed precisely what the damages were; the affidavit in attachment showing that the defendant was indebted to the plaintiff in the sum of $3,500, upon an express contract for the direct payment of the money. There is no uncertainty appearing on the face of the proceedings as to the amount actually due. At the trial the only thing necessary to fix and determine the amount is to prove the value of the land. The amount agreed to be realized and paid over to the plaintiff is fixed by the contract. Our code does not require that the amount due on the contract shall appear from the contract itself (Code Civ. Proc. § 537), but that the amount of the indebtedness shall be shown by affidavit (Id. § 538). Attachn ent may issue in an action for damages for the breach of a contract. Donnelly v. Strueven, 63 Cal. 182. And this where proof is necessary at the trial to show the amount of damages. Drake, Attachm. §§ 13-23. But there must exist a basis upon which the damages can be determined by proof. Thus it is said: ‘Where the contract sued upon furnished a standard by which the amount due could be so clearly ascertained as to enable the plaintiff to aver it in his affidavit, or the jury, by their verdict, to find it, a,n attachment might issue.” Id. § 15; Wilson v. Wilson, 8 Grill. 192. To the same effect see Wade, Attachm. § 11 et seq.; Sawmill Co. v. Fowler, 28 Conn. 103; Lawton v. Keil, 51 Barb. 30, 34 How. Pr. 465; Turner v. Collins, 1 Mart. (N. S.) 369; Cross v. Richardson, 2 Mart. (N. S.) 323. * * * Having brought his suit for damages, the only evidence necessary to fix the amount due him is as to the value of the land. This is as easily done as it would be to prove what the services were worth, in an action on an implied contract for work done, or upon an express contract to pay what the services were reasonably worth, and certainly such contracts would uphold attachment. ”

Applying the principles of these cases to the case at bar, I am of the opinion that the attachment properly issued. By the terms of the contract alleged, the defendant bound himself to complete the building, and turn it over, by May 12th. He did not have it completed until August. The rental value, or the value of the use and occupation, for the time intervening between May 12th and August 1st, constitutes the damages the plaintiff would be entitled to recover under the first cause of action stated. A court, therefore, with the contract and proof of the rental value, could definitely determine the amount due the plaintiff; and the plaintiff can definitely state the amount in his affidavit, as he has done in this case. To sustain the attachment for the second cause of action is somewhat more difficult, and it comes exceedingly close to the border land. But it may be that the facts stated or alleged in the affidavit may be sustained by such evidence as to bring it within the principle of the cases cited. Suppose that the plaintiff should prove that he had a tenant ready, willing and able to take the property at the designated rent for a term of years, but that, by reason of the defendant’s delay in completing the building at the time specified, such tenant rented other property, and that when the building was completed and turned over the plaintiff was compelled to accept a tenant at $130 less per month, as he states in his affidavit. Is this not a fixed and def-finite sum? Would not the plaintiff be entitled to the difference between the amount he could have obtained if the building had been completed at the proper time, and the rent he was obliged to accept by the delay in getting possession of uthe building? If this cause of action stood alone as the ground of the attachment, I should feel some reluctance'in sustaining it; but, as the first ground comes clearly within the rule, the attachment was proper, and the order of the circuit court is affirmed.