Warwick v. Chase

Attachment on Warrant — Rote of Measure of Damages in: Jurisdiction: Contract — Construction of: Presumptions: Motion to 'Quash. — C. W., in attachment on warrant, charged Le B. & Co. with damages “for not selling and investing in a return cargo of coffee, a cargo of Richmond flour, shipped per bark Clara Haxall,” from Richmond, Va., in September 1857, the amount of which he ascertained by a hypothetical account, purporting to show what would have heen-his profits had the proceeds of the flour been invested in a return cargo of coffee, and had the same been received by him at Richmond on the 20th of March 1858. Instructions in reference to said shipment were contained in four letters from the plaintiff to the defendants. The first says: “ If you can sell the flour afloat at about $9.00 net, please do so before her arrival. If coffee, such as you sent me by her, can he put on board at 10 or 10⅞ cents per pound, you may ship by her the proceeds’ of the flour. If not, remit me, in sterling exchange.” The next: “If yon can return the proceeds in coffee, by her, of same quality as that you sent for me on her last voyage, to cost not oyer 10⅝ cents per pound, on board, yon will please do so. If not, remit me, in sterling exchange, for the proceeds.” The next reduces the limit to 10 cents per pound for the coffee. The next to 9, and adds: “ But I am in hopes the flour has been sold some time ago, and that you have remitted the proceeds to me as directed, in good sterling exchange.” Heid: 1st. That the general rule in such cases is, that unliquidated damages, resulting from the violation of a contract, cannot be recovered by attachment, unless the contract affords a certain measure or standard for ascertaining the amount of damages, without the aid of inferences from extrinsic facts or circumstances. 2nd. That the contract in thi3 case is one which the law presumes, and resting in presumption, it could not go beyond a simple undertaking to comply with the plaintiff'’s instructions. 3rd. That the claim of C. W. is substantially for lost profits on the ruling prices of coffee in the Richmond market at a certain date, and the account by which the amount of the claim is shown, assumes that the return voyage, both as to perils of the sea and time of completion, was at the risk of Le B. & Co., whereas all the risks and contingencies of the voyage were on C. W. 4th. That to have held the agents at Rio liable for damages, to be ascertained by the standard of market values at Richmond, it was not only essential that the vessel should have made the home voyage with safety, but that all the facts necessary to fix the standard should have occurred. 5th. To sustain the attachment in this case, it would be necessary that the standard for ascertaining the amount of damages claimed should not only appear, but that it should be fixed and certain, and in no degree dependent on facts either speculative or uncertain; whereas the particular measure insisted on is altogether hypothetical, the facts necessary to give it certainty are assumed, and it was impossible, from the nature of the case, for the appellant to fix upon the market value of any given day as the standard for ascertaining the amount of his claim, — and for the same reason he could not aver it. 6th. That the motion to quash the attachment in this case, was properly sustained.

Appeal from the Superior Court of Baltimore city. This was an attachment on-ioarrant, issued at the instance of the appellant against E. Le Breton & Co., to recover $9,578.58 damages, claimed by the former from the latter, for alleged delay in selling a cargo of flour, and failure to invest the proceeds in a return cargo of coffee. The attachment papers consist of a pro forma or hypothetical account, accompanied with, the affidavit of the plaintiff, purporting to show what would have heen his profits had the flour heen sold to the best advantage, and the proceeds of sale applied to the purchase of a return cargo of coffee; a statement in writing, that the flour arrived in Rio on the 14th of November 1857, that it could and ought to have heen sold prior to the 1st of February 1858, that the proceeds, if so sold, could have heen invested in two thousand two hundred and twenty-six bags of coffee, which would "have arrived in Richmond about the 20th of March 1858, and would, on that day, have realized a certain net profit, hut that sterling exchange had been remitted instead, which realized a smaller amount. Four letters from the plaintiff to the defendants, dated respectively the 8th, 16th and 29th of September, and the 6th of November, 1857, were also filed as part of the attachment papers. The first says: “If you can sell the flour afloat at about $9.00 net, please do so before her arrival. ’ If coffee, such as you sent me by her, can be put on hoard at 10 or 10⅜ cents per pound, you may ship by her the proceeds of the flour. If not, remit me, in sterling exchange.” The next: “If you can return the proceeds in coffee, by her, of same quality as that you sent for me on her last voyage, to cost not over 10⅛ cents per pound on board, you will please do so. If not, remit me in sterling exchange, for the proceeds.” The next reduces the limit to 10 cents per pound for the coffee. The next to 9, and adds: ‘ But I am in hopes the flour has been sold some time ago, and that you have remitted the proceeds to me as directed, in good sterling exchange.” The attachment was issued on the 10 th day of September 1859, and laid in the hands of the garnishees, who, on the return day, appeared and pleaded non assumpsit and nulla hong. A short note accompanied the summons and attache ment, and was set up at the Court House door, in the city of Baltimore. Subsequently, the garnishees moved to quash the attachment, on the ground that it had issued on a claim for unliquidated damages, and for other errors apparent on the face of the proceedings. The motion was sustained, and this appeal was taken from the order quashing the attachment. 1st. That an attachment can be issued upon a claim for unliquidated damages. Wilson vs. Wilson, 8 Gill, 193. 2nd. That the claim of the plaintiff, as shown by his affidavit, and the annexed accounts and vouchers arose ex contractu; that the amount of damages for its breach, although not liquidated in the strict sense of the term, was yet susceptible of ascertainment by a standard fixed by the contract itself, and so certain as to enable the plaintiff by affidavit to aver it, and the jury by their verdict to ascertain it, and that the plaintiff was therefore entitled to the remedy by attachment upon said claim as against the defendants, his non-resident debtors. Wilson vs. Wilson, 8 Gill, 194, 195. Fisher vs. Gonsequa, 2 Wash. G. G. B., 385. S. O. Browne Bep., Append., 28. Bedwood vs. Gon-sequa, lb., 62, 11. Sergeant on Attachments, 44. Drake, secs. 13 to 23. Glarke’s Fx’rs vs. Wilson, 3 Wash. G. O. B., 562. Morris vs. Turner, 5 Benn. Law Journal, 465. Ward vs. Begg, 18Barb., 139. Garland vs. Cunningham, 31 Penn., 228. Strock vs. Little, 45 lb., 416. Bollofsen vs. Hatch, 3 Mich., 219. Evans Practice, 90. Petersdorff on Bail., secs. 16, 10 Law Lib., 9. 3rd. That the affidavit in this suit does state a case and furnish grounds for issuing an attachment. 4th. That the plaintiff was not required to produce, with his affidavit, all the testimony by which his claim was to be established, but only to make a statement of a cause of action, arising, ex contractu, upon which, a declaration could he framed, claiming an amount of damages for its breach, sufficiently certain to he averred and ascertained, as stated in the second point; Dawson vs. Browns, 12 Cf. & J., 54. Bell vs. Cunningham, 5 Mass., 161, and 3 Pet. 69. 2 Parsons on Cont., 460, 467. Sedgwick on Damages, 351. Mayne on Dam., sec. 312, (95 Daw Lib., 213.) Williamson vs. Dillon, 1 H. & G., 464, 465. The garnishees will contend, that the attachment was properly quashed, for the following reasons, viz : 1st. The claim was for unliquidated damages, not the subject of an attachment. An attachment will only lie on a claim'arising, ex contractu, where the contract itself furnishes a fixed or certain standard, independently of all contingencies, enabling the plaintiff to swear to a precise indebtedness. Act of 1195, ch. 56. Wilson vs. Wilson, 8 Gill, 192. Drake on Attachment, secs. 20 to 35 inclusive. Olarke’s Bx’rs vs. Wilson, 3 Wash. G. G. B., 560. Hazard vs. Jordan, 12 Ala., 180. Jeffry vs. Wooley, 5 Hoisted, N. J., 123. Gheddick vs. Marsh, 1 ZdbriSlde, 463. Hay vs. Brown, 1 Harrison, N. J., 157. 2nd. The appellants’ claim depends upon the contingencies, whether the cargo of flour could have been sold afloat, on or before its arrival, for the prescribed price, whether the proceeds could have been invested in coffee of -the desired kind and quality, within the prescribed limits, whether the return cargo would have arrived in Richmond, at the time supposed, or at all, and whether it could have been there sold, at a price which would have realized the net profit supposed. 3rd. Damages depending on such a chain of contingencies, were too speculative and uncertain to constitute a claim which can be used as a set off, or for any other purpose for which a certain, net conjectural claim is necessary. Sedgwick on the Measure of Damages, 428. Butts' vs. Collins. 13 Wend., 139. 4. All attaching creditor is required to file an actual account, showing an actual indebtedness, not a pro forma or hypothetical account, based on a number of contingencies, either of which might or might not have happened, and the failure of either of which, not only would have altered the account, but might have made the alleged creditor an actual debtor. 5th. There is no allegation that the defendants contracted to buy coffee. The sale of the flour consigned to them, implies no other contract than to account for the proceeds. It no more implied a contract to invest them in coffee, than the receipt and appropriation by the plaintiffs, of the sterling bill, amounted to a ratification of the investment in that security. 6th. The affidavit and accompanying attachment papers, do not show a debt, or any facts from which the Court can infer one. The letters of instruction direct a return cargo of coffee to be shipped by the Bark Clara Haxall, if her outward cargo of flour can be sold afloat from the vessel, on or before her arrival. There is no allegation that the outward cargo could have been so sold, that the vessel ever returned, so that a return cargo might have been shipped by her, or that the defendants contracted to obey the instructions. This is a defect of averment, not of proof, and is as much a ground for quashing the attachment, as the absence of the necessary averment in reference to the residence of the defendants, or any other error apparent on the face of the procedings.