Opinion
June Term, 1842.
Unliquidated damages, such as damages which in their nature are uncertain, for the breach of an agreement, cannot be made the subject of attachment under our attachment law.
APPEAL from Battle, J., at Spring Term, 1842, of CARVEN.
J. H. Bryan and J. W. Bryan for plaintiffs.
Badger for defendants.
This was a proceeding by attachment against one Seldon Tryon, in which the defendants Booth Porter were summoned as garnishees, upon the allegation that they were indebted to said Tryon. In their garnishment the defendants denied that they owed Tryon anything, and thereupon, at the instance of the plaintiffs, an issue was made up to try the fact. On the trial the plaintiffs, in order to prove the indebtedness of the defendants to Tryon, produced the instrument, of which the (283) follow is a copy:
This may certify that if Mr. Seldon Tryon should wish to purchase of us tinware at our wholesale prices within twelve months from date, and should have Otis Porter's note in his possession, we will take the same in payment. BOOTH PORTER.
NEW BERN, 13 May, 1836.
They also produced four notes, of which the following are copies:
$317.75. Six months after date I promise to pay Seldon Tryon the sum of $317.75, for value received, as witness my hand and seal, this 10 June, 1836. OTIS PORTER. [SEAL]
Eight months after date I promise to pay Seldon Tryon the sum of $317.75, for value received, as witness my hand and seal, this 10 June, 1836. OTIS PORTER. [SEAL]
One day after date I promise to pay Seldon Tryon or order $520.21, for value received, as witness my hand and seal. Edgecombe County, North Carolina, 18 July, 1836. OTIS PORTER. [SEAL]
Ninety days after date I promise to pay Seldon Tryon or order $525.56, for value received. Witness my hand and seal. Edgecombe County, North Carolina. OTIS PORTER. [SEAL]
The plaintiffs then proved that Tryon had, within twelve months from the date of the instrument above referred to, presented these notes to Booth Porter, and demanded their amount in tinware at wholesale prices, and that Booth Porter refused to comply with the demand. It appeared that Otis Porter was insolvent at the time of this (284) demand. Upon this evidence the plaintiffs insisted that Booth Porter were indebted to Seldon Tryon the amount of the said notes, and that the issue must, therefore, be found in their favor. The defendants then introduced as a witness Otis Porter, the person named in the instrument given by them, who testified that he met Seldon Tryon in New Bern, where the defendants had a tin factory, and in the presence of James Porter, one of the firm of Booth Porter, the witness agreed to purchase clocks of Tryon, and James Porter agreed to take Otis Porter's note for tinware at the wholesale prices, and thereupon the instrument above referred to was given by James Porter, in the name of Booth Porter. The witness testified that he subsequently purchased of Tryon one hundred clocks, and therefor gave the two smaller of the notes above mentioned; that the clocks were then at Tryon's store in Edgecombe County, where the witness called occasionally and took them as he wanted them, he being at the time engaged in peddling, until he had received about one-half of the number purchased, and that the balance of them he never received, as Tryon refused to let him have them; that the two larger notes were given for dry goods, the whole of which he received from Tryon. The defendants then introduced Jonathan Pike, who testified that on a certain occasion Tryon came to him and offered to sell him the four notes above referred to; that Tryon was then about going on a trip to the north, and witness told him he would take the notes, provided Tryon would agree to take them back on his return, if the witness should not like them; that after Tryon returned, he, the witness, took the notes to him and requested him to take them back according to his promise, but he refused to do so, alleging that the notes were good, and saying that he had then in his possession $500 or $600 worth of property belonging to Otis Porter. This witness stated further that he renewed his application to Tryon two or three times; and finally sued him, when they settled the difficulty by Tryon taking back the notes and returning the money witness had given for them.
Upon this case the defendants objected to the plaintiffs' (285) recovery, upon several grounds; first, Because they were not indebted to Tryon, within the meaning of the act of Assembly (Rev. Stat., ch. 6) so as to make them responsible therefor as garnishees; secondly, Because the instrument upon which they were sought to be made responsible was not an available contract between them and Tryon, both for want of a consideration and want of mutuality; thirdly, Because the engagement only mentions one note of Otis Porter, and Tryon could not recover upon a demand for four. The court held that the only claim which Tryon could have against Booth Porter was for damages in consequence of their refusal to comply with the contract above spoken of; that such damages were entirely uncertain, and that, as the act required garnishees to state on oath the amount of their indebtedness to the person whose property was attached, it did not embrace cases where the claim was for uncertain damages, the amount of which could not be known to, and could not, therefore, be stated by, the garnishees. In submission to this opinion the plaintiffs suffered a nonsuit and appealed to the Supreme Court.
The provisions of our attachment law were, in our opinion, correctly construed by his Honor. That part of it which was taken from the act of 1777 authorizes a person to whom one removing is indebted to take out an attachment for his debt or demand" and have it levied "on the estate of such debtor, or in the hands of any person indebted to or having any effects of the defendant"; and it provides that where the attachment shall be thus served in the hands of one supposed "to be indebted to or to have any of the effects" of the party defendant, the garnishee shall be summoned to answer on oath " what he is indebted to the defendant, or what effects of his he hath in his hands"; and upon the examination of the garnishee, the court shall "enter judgment and award execution against the garnishee for all sums of money due (286) to the defendant from him, or for all effects, etc." It seems plain upon the act thus far that the garnishee could only be called on to account for specific estate and effects belonging to the debtor and left with the garnishee as the effects of the debtor, or for a debt owing from the garnishee and then due to the debtor. The plaintiff in attachment is permitted to use that process to recover his "debt or demand." But when the subject on which the process may be served is spoken of, the phraseology limits its operation yet more narrowly by requiring it to be served in the hands of one indebted to the defendant. And it would seem, indeed, that the indebtedness, at first, must have been in a sum of money then due; since the act directs an immediate judgment and execution, and uses the language, "sum of money due." Under the act of 1777, we think it clear that no demand could be attached in the hands of a garnishee but one that was a debt in a legal sense, and for which an action of debt or indebitatus assumpsit would lie, or arising upon a liability on negotiable paper, as upon drawing a bill of exchange or indorsing a promissory note, in which case the measure and nature of the party's liability are as clearly defined and as well ascertained in the law merchant as those of an obligor in a bond or the maker of a note. That act did not even embrace the cases of acknowledged money debts, not due at the time, or an indebtedness in specific articles; nor provide for a denial by the garnishee of his indebtedness. The attachment could only be served on one "indebted"; and the judgment was to be "upon his examination only" — which yet more clearly evinces that it could only apply to such demands of which the garnishee could conscientiously and with reasonable certainty state the amount on his oath, and not to a case of uncertain damages, of which there is no standard until assessed by a jury. If the present case had, therefore, arisen before the act of 1793, it is apparent it could not have been sustained. Here it is impossible to say that Booth Porter were indebted to Seldon Tryon, the defendant in the attachment; for if the contract had been for the sale and purchase of tinware at specific prices, to be paid at the time of delivery in money or otherwise, Tryon, upon the tender merely of the payment, could not recover the value of the ware as a debt, but could sue only on (287) the special agreement, and recover, in damages, the difference between the price the purchaser was to give and the market value when they ought to have been delivered. It would be the same case here. It is true, Otis Porter is said to have become insolvent, so that it is possible his notes may be worth nothing. But that is not absolutely certain, as he might from his age, connections, or enterprise, probably at some day be able to pay the notes or some part of them. At all events, a jury might think so; and they would be bound to make the estimate, since Tryon did not transfer those notes to Booth Porter so as to vest them in those parties for what they were worth, be that little or much, but chose to keep them himself. They are thus still his, and he would have to account for them before the jury, and could recover only the difference between their value — as it might be made to appear — and the value of the tinware. This, therefore, was not a money debt, nor even a debt of any sort; but a liability upon a contract for unliquidated damages.
But it was argued that the other parts of the act, taken from the act of 1793, ch. 389, have provisions which will embrace this case. Upon an attentive consideration of them, however, we think otherwise; and, indeed, those parts of the act but serve to confirm the previous construction. They first authorize the plaintiff to take issue on the garnishment; but still terms are used equivalent to those in the act of 1777: this section saying, "when the garnishee shall deny that he owes to or has property of the defendant in his hands," then the plaintiff may suggest that the garnishee " owes to, etc." and an issue shall be submitted to a jury, Then follows a provision for other debts besides those in money, namely, where the garnishee "is indebted to the defendant by any security or assumption for the delivery of any specific articles," in which case the garnishee may either deliver the articles in exoneration of himself, or, according to the circumstances, they are to be valued by a jury, and a judgment rendered against the garnishee therefor. And, lastly, the case of a debt not due is provided for in these words: "When (288) a garnishee shall declare that the money or specific article due by him will become payable or deliverable at a future day," then there shall be a conditional judgment in the first instance, and a final one on scire facias. As to a money demand subject to attachment, the act of 1793 does not alter that of 1777, except to add one not due to that which was due, and to allow the plaintiff to take an issue when the garnishee denies the existence of a debt of either kind. It does, however, enlarge the list of the subjects of attachment by adding the indebtedness in specific articles. But the nature of the contract, upon which the specific article is deliverable, cannot be misunderstood. It is classed with that on which the garnishee has bound himself to pay a money debt, and the two are put on the same footing. It can, therefore, only mean a security or assumption for a certain sum of money, payable in specific articles at a particular day (which are very common contracts, and are called "trade notes"), or absolutely to deliver to another a certain quantity of specific articles, as 100 bushels of corn. On either of those instruments debt would lie at the common law; as in the one case the contract is really for money, to be discharged in specific articles, if the obligor offer them; and, in the other, the obligation is complete and the value may be averred and rendered certain on evidence. But upon an ordinary contract of sale, where both parties are to do something — the seller engaging to deliver certain things at a day and place named and the purchaser then to pay for them and receive them, the latter cannot bring debt for the value of the things the other ought to have delivered, but may have his action on the special agreement for damages; and the damages are not necessarily, as has been seen, nor ordinarily, the full value of the articles. There may be many reasons why they should be less; and, among them, the fact, here existing, that the party claiming the damages has kept what he was to have given to the other party as the price, and, therefore, the difference between the value of that and of the goods is a full indemnity for his loss. Damages arising on such a transaction is not a debt subject to attachment under the statute. It would in very (289) many cases produce renewed litigation between the defendant in attachment and the garnishee if such demands were liable to be attached. In every case in which there could be a different view of the amount of damages which the garnishee ought to pay, the other party would say he had not admitted on his garnishment as much as he ought, or the jury had not properly assessed them, and he would bring a new action to recover what he claimed as the true amount. We think the intention of the Legislature was only to embrace the cases in which the demand may be easily ascertained, so that in a subsequent action against the garnishee by his creditor it may be plainly seen that it was covered by the garnishment and condemnation in the attachment, and, therefore, may be properly pleaded as a bar to the second action, brought by the creditor himself. But that can never be said of a demand arising out of the breach of a special agreement which sounds altogether in damages, about the amount of which persons might differ, and which might, indeed, be varied by circumstances not known even to the garnishee, but to the other contracting party only.
PER CURIAM. Affirmed.
Cited: Deaver v. Keith, 27 N.C. 377.
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