Hough v. Kugler

Misjoinder of Parties — Attachment—Penalty. Where in certain articles of agreement entered into between H and wife on the one part, and K on the other, the covenants of K were made with the husband alone, the wife cannot properly be joined as a'party with her husband in an attachment against K, arising out of the alleged breach of his covenants. A claim arising out of the alleged breach of the covenants in certain articles of agreement for the exchange of property, which contained numerous and complicated terms and conditions, embracing many things to be done and performed by the parties thereto, is not of that fixed or definite character which may be recovered by attachment. It is in its nature a claim for unliquidated damages, whore the contract furnishes no measure or standard for their computation, and the true amount of which cannot be verified by affidavit. By articles of agreement for the exchange of certain property between the plaintiffs and the defendants, it was provided that “ either party failing to comply with the conditions of the contract should pay to the other, as fixed or liquidated damages, the sum of five thousand dollars, or more, if more damage should be proved.” Held : That the sum of $5,000 was in the nature of a penalty, and could not bo recovered as liquidated damages by attachment.

Appeal from the Circuit Court for Caroline County. This was an attachment on warrant issued at the instance of the appellants to recover the sum of $5,055.38, claimed to be due to them from the appellee. The vouchers or evidence of debt produced by the attaching creditors consisted of the following articles of agreement, and an account purporting to show the amount of money due : This article of agreement, made this fifth day of October, Á. D., 1870, between George W. Kugler, of Goldsborough, Caroline county, and State of Maryland, and Lewis S. Hough and Amelia M. Hough, his wife, of Mantua, Gloucester county, and State of New Jersey, in relation to the exchange of properties : "Witnesseth, that George W. Kugler covenants and agrees with the said Lewis S. Hough, for the consideration hereinafter named, that on or before the first day of January next, the said George W. Kugler will make true and valid deeds to the said Lewis S. Hough or Amelia M. Hough, his wife, to the following properties, situated near Goldsborough Station, Caroline county, State of Maryland, viz: Ho. 1. The mill property, containing six acres of land, with the improvements thereon, valued at ($5,500) five thousand five hundred dollars. Ho. 2. 147 acres of land, called or known as the “Wyatt Farm,” with the improvements, valued at forty dollars per acre. Ho. 3. Hinety-seven acres, knowm as the “Sylvester Farm,” valued at thirty-five dollars per acre. On the above properties there is a mortgage of two thousand dollars, which the said Lewis S. Hough assumes and agrees to pay, with interest, from the first of January next; provided that the said Kugler will procure from the holder of said mortgage, that he will give one year’s time on the first thousand dollars, and two years on the second thousand dollars, by said Hough paying the interest promptly. Ho. 4. Farm containing two hundred and three acres, as per record of deed, with the improvements thereon, adjoining the above properties, valued at twenty-five dollars per acre, subject to a widow’s dower. Ho. 5. Sixty-six acres of land, mostly wmodland, with the improvements thereon, adjoining the lands of H. C. Culbreth, Geo. W. Kugler and others, valued at twenty dollars per acre. The above described properties are subject to a judgment docketed against Thomas C. Wyatt and Geo. W. Kugler, as security, in the Circuit Court of Caroline county, in favor of the State of Maryland, for three thousand dollars; of which sums the said Geo. W. Kugler agrees to pay five .hundred dollars on or before the first day of January, A. D. 1871, with the back interest on the whole sum due the State of Maryland; for which sum of five hundred dollars, the said Geo. W. Kugler agrees to accept of the note of the said Lewis S. Hough, signed also by Amelia M. Hough, his wife; said note payable, with interest, eighteen months from the first of Jan. next. The balance due the State of Maryland at that time, will be from three hundred to five hundred dollars, as by arrangements made with the State authorities by the said . Geo. W. Kugler; for this sum .of from three hundred to five hundred dollars, G. W. Kugler agrees to take the note of the said Lewis S. Hough, payable at six months, at Easton Bank, and with the avails of said note, to pay the balance above named; provided, that the said Lewis S. Hough shall not otherwise be able to discharge said balance due the first of Jan. next. The remainder of said judgment the said Lewis S. Hough agrees to pay in two annual equal instalments, according to the arrangements already made by the said Kugler with the State authorities of Maryland. No. 6. The said Geo. W. Kugler agrees to pay over to the said Lewis S. Plough, for his use and ownership, a Maryland and Delaware R. R. Bond, and first mortgage, per one thous- and dollars, paying six per cent., payable semi-annually. No. 7. Ten shares capital stock of Maryland and Delaware R. R. No. 8. A first and only mortgage of twenty-eight hundred dollars, agairist 168 acres given by Isaac J. Reed and wife to , Geo. W. Kugler; 'this to be transferred to Lewis S. Hough, or order, for his benefit and use or ownership. For and in consideration of the above named properties, the said Lewis S. Hough and Amelia M. Hough, his wife, covenant and agree with the said Geo. W. Kugler, that on or before the first day of January, A. D. 1871, they will make true and valid deeds to Geo. W. Kugler, .or his wife, to the following properties: No. 1. The farm usually called the “Twitchell Farm,” consisting of about one hundred and ninety-five acres, situated near the village of Mantua, county of Gloucester, State of New Jersey, with the improvements thereon, valued at twenty-seven thousand three hundred and forty dollars; said farm or farms is subject to nine thousand, six hundred and twenty-four dollars and sixty-seven cents, ($9,624.67,) which incumbrance the said Geo. "W. Kugler assumes and agrees to pay, with interest from the first of January next. There is also on the part of the farm south of the Berkley road, a bond and mortgage of thirty-four hundred dollars, in favor of Lyman Tyler, which the said Lewis S. Hough and Amelia M. Hough, his wife, agree to pay, both principal and interest, on or before it becomes due, and to save and protect the said G. W. Kugler, his heirs or assigns, from all harm or detriment from the same. Nos. 2, 3 and 4. The houses and lots, situated in the village of Mantua, and now occupied as tenant houses, and known as properties of the said Lewis S. Hough; on these three properties are incumbrances amounting to twelve hundred and seventy-five dollars; which incumbrances the said Geo. W. Kugler assumes and agrees to pay, with interest from the first of Jan. next; said properties valued at three thousand and fifty dollars; mutual possession to be given on or about the first of Jan. next; one-half of nursery peach trees reserved (those budded this fall) by Geo. W. Kugler. No. o. 39 shares of turnpike stock, Woodbury aud Mullica Hill Co. Either party failing to comply with the conditions of this contract, shall pay to the other, as fixed or liquidated damages, the sum of five thousand dollars, or more, if more damage shall be proved. Geo. W. Kugler, [Seal.] Lewis S. Hough, [Seal.] Amelia M. Hough, [Seal.] Signed and sealed in the presence of— Lyman Tyler, Mary B. Tyler. Account. 1871. George W. Kugler, Du. Jan. 1st. To the Twitchell Farm, about 195 acres, near the village of Mantua, N. J.; that portion of this farm south of the Berkley Road having on it the Mansion House and other valuable improvements, was deeded to Maria J. Kugler, the wife of George W. Kugler, valued at.........'......$15,000 00 Less the incumbrances, 4,624 67 . -$10,375 33 $10,375 33 The other portion of said farm, lying north of the Berkley Road, with the improvements thereon, was deeded to George W. Kugler, and valued at..........,..................$12,340 00 Less the Incumbrances, 5,000 00 -2-' 7,340 00 $7,340 00 To 3 houses and lots in the village of Mantua, valued at......... $3,050 00 Less the incumbrances, 1,275 00 -- 1,775 00 $1,775 00 To 29 shares in the capital stock of the Woodbury and Mullica Hill Turnpike Co, at $25 per share. $725 00 725 00 Total Dr..............................$20,215 33 Total Cr..............“................$15,369 92 Balance due L. S. Hough and A. M., on the close of the 1st day of January, 1871................................... 4,845 41 Am’t brought forward................ $4,845 41 Int. at 6 per cent, on same, to Sept. 20th 1871........................................ 209 97 $5,055 38 Amount due L. S. Hough and A. M. Hough, on the 20th of September, 1871..................................... $5,055 38 1871. George W. Kugler, Cr. Jan. 1st. By mill property, containing 6 acres, with improvements thereon.............. $5,500 00 By a farm of 147 acres, valued at $40 per acre.. $5,880 00 By a farm of 97 acres, valued at $35 per acre.. $3,395 00 By a farm of 66 acres, valued at $20 per acre.. $1,320 00 Total...................$16,095 00 Less incumbrances on first 3 farms.......... 5,000 00 --$11,095 00 $11,095 00 By 1 Md. & Del. R R. bond, $1,000 00 1,000 00 By 10 shares in the capital stock of the Md. & Del. R. R. Co., at $25 per share........................................ 250 00 By interest, money paid by Geo. W. Kugler....................... $218 67 218 67 By work done by ¥m. Cox, in payment for quarter’s rent on T. C. Wyatt, farm of Geo. W. Kugler........ $6 25 6 25 Am’t carried forward, $12,569 92 Ain’t brought forward...............$12,569 92 By money received as net. proceeds of 8 caskets of peaches, from the -above farm.................................40 cts. 40 By 1 mortgage of $2,800.00, against 168 acres of J. J. Reed......... $2,800 00 2,800 00 Total.................................$15,369 92 The defendant moved to quash the attachment for the following reasons: 1. Because''the attachment was not issued for a debt due from the defendant, within the, meaning of the Act of Assembly regulating attachments. 2. Because the alleged claim is for unliquidated damages. 3. For defects appearing on the face of the proceedings. The motion to quash was sustained by the Court, and the plaintiffs thereupon appealed.