
    S. SMITH HOOVER et al. vs HATHAWAY, SOULE AND HARRINGTON, A Corporation.
    Attachment; Unliquidated Damages.
    1. The act of Maryland of 1795, relating to foreign attachments, as modified by the act of Congress of June I, 1866, is in force in this District; following Wallace vs. Maroney, 6 Mackey, 221.
    2. Proceedings by way of attachment will not lie when founded upon a claim for unliquidated damages.
    At Law.
    No. 31,160.
    Decided June 20, 1892.
    The Chief Justice and Justices Hagner, James and Bradley sitting:
    Hearing on appeal by plaintiff from an order of the Circuit Court quashing a writ of attachment and garnishment.
    
      Affirmed.
    
    The facts are stated in the opinion.
    Messrs. Birney and Birney for plaintiffs (appellants).
    Mr. Alexander Porter Morse for garnishees (appellees) :
    Counsel for plaintiffs insists that sec. 782, Rev. Stats., D. C., does not limit the right “to liquidated demands, but in terms entitles any plaintiff to the writ, and this statute should control, since it is complete within itself and does not in any way refer to the Maryland statutes, but takes its place.” And reference is made, as authority, to Drake on Attachment, Appendix, p. 705. But the latest edition of that treatise makes a* different statement in respect of the law of attachment in this District, from the text of earlier editions. But, further, this proposition of counsel for plaintiff is expressly denied by language found in the decisions of this court. Wallace, Elliott & Co. vs. Maroney, 6 Mackey, 221. It is not believed that any authority has been cited that holds adversely to the position of garnishees herein.
    
      Sec. 782, R. S. D. C. (act of Cong. 1st June, 1866,) does not have the reach that counsel attributes to it. (Wallace, Elliott & Co. vs. Maroney, 6 Mackey, 221.) And it is not applicable to a case circumstanced as this. Its language clearly contemplates that (1) some property must be within the jurisdiction, or have been removed, or that defendant evades process, &c., (2) or that the relation of creditor and debtor must exist at the time of attachment. And it is amendatory of the act of Maryland only in the particular pointed out by this court.
    An interpretation of the act of Congress 1st June, 1866, in respect of attachment, such as counsel for plaintiff urges, would be violative of fundamental principles of jurisprudence and in conflict with the decisions of the Supreme Court of the United States and of this court. Toland vs. Sprague, 12 Peters, 300; Pennoyer vs. Neff, 95 U. S., 748; Wallace, Elliott & Co. vs. Maroney, 6 Mackey, 221.
    The case of Dawson vs. Brown (12 Gill, 53) and a case in 1 Gill, 372, cited as “ White vs. Solomon,” but-which appears to be entitled “ Boarman vs. Israel,” relied on b}*- counsel for plaintiff at the conclusion of his brief, do not decide anything that conflicts with the position of garnishees here. In the first, a declaration, with bill of particulars, showing an open account was filed; garnishees appeared and pleaded non assumpsit and nulla bona, and afterward moved to quash attachment on grounds stated; county court quashed attachment; on appeal judgment was reversed; but the language and reasoning plainly indicate that the subject-matter which authorizes the issuance of the writ of foreign attachment must be such as is enumerated and authorized by the act of Maryland, 1795, ch. 56, sec. 1.
    The question determined in that case was over a controversy in respect of “the time and mode”-in which “testimony” may be appropriately produced. The second case (Boarman vs. Patterson, 1 Gill, 372) was attachment to compel appearance; plaintiff declared and claimed certain indebtedness in dollars and cents, with bill of particulars, promissory notes, covenant under seal, &c.; no appearance of defendants or garnishees; after judgment of condemnation, defendants appeared and moved to quash on grounds stated; the court cited approvingly, on one point, Dawson vs. Brown, and clearly held that the act of Maryland, 1795, ch. 56, was still in force, except as amended or repealed in certain particulars not relevant here; judgment of county court, awarding a condemnation, was reversed, and attachment quashed; and the court say, “Under the act, unless the affidavits of the creditor contain an averment of citizenship as to both creditor and debtor, no attachment against an absconding debtor can issue.” (Ib. 3821) This citation indicates that it was against “an absconding debtor” that the compulsory process of the court was first authorized by the Maryland statute.
    However it may be in other jurisdictions, in this District the law as to foreign attachment finds its origin in the custom of the city of Dondon. And it is controlled and regulated by the Maryland Statutes of 1647, 1695, 1715, 1791, 1794 and 1795, as amended by the act of Congress, June 1, 1866. Rev. Stats. Dist. of Col., Sec. 782, p. 93; Wallace, Elliott & Co. vs. Maroney, 6 Mackey, p. 221.
    This proceeding had its origin in a peculiar condition of affairs; and was primarily instituted in the interest of a privileged class, namely, the merchants, the tradespeople, and the guilds of Dondon. It was designed to serve a special purpose; but limitations and conditions were placed upon its employment; and it was early decided that nothing was attachable under this writ but a certain and due debt. It issued only upon an action founded on debt contracted in the City of Dondon.
    At the date of its institution, the “plaint” could only be brought before a designated tribunal. (Tomlin’s Jacob’s Daw Dictionary, tit. “Attachment;” Privilegia Dondini, 254.)
    In principle and essential elements the Maryland statute of 1795, ch. 56, recognizes and follows the law of foreign attachment according to the custom of Dondpn.
    By the “custom of Dondon,” as under the statutes of Maryland, the writ of foreign attachment would not issue upon an action for “unliquidated damages.” Robbins vs. Standard, Sidfern’s Reports, 327 (A. D. 1659-1670); 1 Nels. Abr., 282, 283; Tomlin’s Jacob’s Law Dictionary, tit., “Attachment;” Campbell vs. Morris, 3 H. & McH., 535; Wilson vs. Wilson, 8 Gill., 192; Warwick vs. Chase, 23 Md., 154.
    In Stephenson vs. Giberson (A. D. 1806), the Circuit Court of the District of Columbia refused to condemn the attached effects without proof of debt, and doubted whether a claim for unliquidated damages could be ground of attachment under the Maryland Act 1795, ch. 56. 1 Cranch Circuit Ct. Rep., p. 319.
    In this jurisdiction attachment and garnishment are statutory remedies, and all the requirements must be strictly complied with. Attachment proceedings are strictly construed. Newman vs. Hexter, MacArthur and Mackey, 93, 94.
    In Maryland, unliquidated damages are not the proper subject of garnishment. Wilson vs. Wilson, 8 Gill, 192; Warwick vs. Chase, 23 Md., 154; Wade, Attachment, vol. 1, p. 59, Sec. 23.
    The contract must furnish the rule of damages. Clark’s Executors vs. Wilson, 3 Washington Cir. Ct., 560. Wilson vs. Wilson, 8 Gill, 192; Warwick vs. Chase, 23 Md., 155. Hough vs. Kugler, 36 Md., 186.
    In this jurisdiction the usual proceedings in attachment and garnishment are under the act of assembly of Maryland of 1795, ch. 56, § 1, as amended by act of Congress June 1, 1866.
   Mr. Justice Bradley

delivered the opinion of the court:

This case is here upon thev plaintiffs’ appeal from the order of the Circuit Court quashing a writ of attachment and garnishment. The action was brought against the defendant, a foreign corporation. Service of summons was not obtained upon it in any way, and a writ of attachment and garnishment was issued based upon affidavits filed subsequent to the filing of the declaration. That writ of attachment and garnishment was served upon Havenner & Davis, co-partners, doing business in the District of Columbia. A motion to quash the writ was filed by the garnishees, based substantially upon two grounds, though nine grounds are named. The first is, ‘ ‘ Because the declaration and supporting affidavits show that this is an action sounding in unliquidated damages, on account of alleged breach of contract by defendant, and not an action upon a liquidated demand.” The second is, “ Because it is not alleged that any contract was executed and subscribed by and between plaintiffs and defendant, and because the affidavits whi.ch are the basis of the writ, are insufficient in law.”

It is necessary to read the declaration, as well as the affidavits upon which the writ issued, in order to get at the substantial points involved in this motion. The declaration alleges “That, in July, 1890, the plaintiffs were about to enter upon the business of retail dealers in boots and shoes at Washington, and proposed to open a store or place of business on September 1, following; that defendant was a manufacturer of shoes; and by its officers.was informed of plaintiffs’ purposes, and well knew the same. And thereupon, and being so informed, defendant undertook and agreed to and with the plaintiffs that it would manufacture for plaintiff, a great quantity of boots and shoes, to wit, one thousand pair of various sizes, qualities, prices and descriptions agreed upon, and-deliver them within a reasonable time, to wit, the aforesaid 1st day of September, 1890; and the plaintiffs agreed to pay for the same. But defendant did not deliver said goods at any time; and, by reason of neglect and failure of defendant to deliver said goods according to promise, plaintiffs could not and did not open their place of business on the 1st day of September, 1890, nor for a long period of time thereafter, to' wit, until September 15, 1890, and were put to great expense in the procurement of other goods in the place of those so agreed by the ■ defendant to be delivered, and were unable to procure other and suitable goods until about December 1. 1890, and thereby were unable to supply the demands upon them, made by their customers, and lost great profits which would have come to them in the sale of such goods, and were otherwise hindered, delayed and embarrased and annoyed in their said business, to the great damage of the plaintiffs, to wit, $3,000.

And plaintiffs claim $1,500 damages, etc.

The principal affidavit in support of this writ was made by I/uther B. Snyder, one of the plaintiffs, who says, substantially, that the plaintiffs made a contract with the defendant to deliver to them a large quantity of boots and shoes before the ist day of September, 1890, and that defendant did not deliver the goods or any part thereof, nor give any reasonable excuse for failing so to do. That the refusal was not communicated to the firm of the plaintiffs until it was too late to purchase other goods so as to open their store on the ist day of September and they were unable to supply the place of the goods contracted for, until about the ist day of January, 1891, and that they did not open their store until September 15, 1890, and wholly lost the rent paid by them for the store-room up to that time, which was at the rate of $150 per month, and they lost in great part the use of the store until December 1. They were also obliged to purchase other goods from other makers, paying higher prices, and they lost indifference of prices about $195.75. They also lost the wages of the employee who was engaged, and sustained other losses and damages traceable directly to said breach of contract.” Then he states that he verily believes that his firm has a just right to recover for the breach of contract the amount named in the declaration, viz: $1,500. The supporting affidavit is by one Willie M. Snyder, who says: “I am and have been since October ist, 1890, a clerk in the employ of Hoover & Snyder, plaintiffs in cause No. 31,190, at Daw, against Hathaway, Soule & Harrington. I am a brother of Duther P. Snyder, of said firm, and am familiar with said firm’s cause of action in said case.

“I know that in July, 1890, said Hathaway, Soule & Harrington, accepted in writing an order for the manufacture and delivery to said Hoover & Snyder of a quantity of shoes (being more than six hundred pairs) and agreed to deliver the sa'me at Washington, D. C., for certain prices specified in said writing. I know that said Hoover & Snyder expected to open their store for business on September 1, 1890, and expected to have the goods so contracted for as a large part of their stock in trade. I saw said writing a short time after it was made. Said goods were not delivered, but before September Hoover & Snyder were notified by defendants that they could not have the goods.

“Hoover & Snyder did not open their store until September 15, 1890, and this was for want of the necessary stock in trade, as I believe. I also know that they were obliged to pay higher prices for goods bought to take the place of those contracted to be delivered by defendant, and went to expense in traveling, &c., to place orders for goods to take their place, and even then they were unable to procure such goods until long after September 1, 1890, and their trade suffered accordingly. Said firm also suffered losses of other kinds because of such breach, and were hindered, delayed and damaged in their business until about the 1st of January, 1891, by reason thereof.

“They have just right to recover damages from said Hathaway, Soule, & Harrington, as claimed in their declaration.’’

It is claimed in behalf of the garnishee, that the mesne process of attachment and garnishment will not lie for a cause of action of this indefinite character. It is claimed that the act of the Assembly of Maryland of 1795, is still in force in the District of Columbia; that under that act it is essential that there shall exist an indebtedness between the defendant and the plaintiff, either ascertained definitely by the contract or, ascertainable under the contract by some fixed standard which is named in the contract itself. That otherwise the claim is for unliquidated damages, and that it would be impossible to specify the amount due as required by that act. It is claimed on the other hand by the plaintiffs, that the measure of damages in this case is ascertained by a fixed Standard in law; that the plaintiffs are entitled to recover the difference between the price agreed to be paid and that paid for other goods, the rent of the store during the time they were unable to use it, and any other positive or direct loss resulting plainly from the breach of the contract. The principal question then is whether it is sufficient to show a case by the declaration, and the affidavits, in which the law has fixed certainly the right to recover damages, or whether it is essential that the contract, which is the foundation of the action, shall fix some standard by which damages can be definitely ascertained. There can be no doubt that the act of Maryland of 1795 is in force in this District. It has been so expressly held in the case of Wallace, Elliott & Co. vs. Maroney, 6 Mackey, 221. The question involved in that case being the right of the actual owner to intervene in the proceedings and defend his property from condemnation under the attachment. The court say: “The provisions of our Revised Statutes were only designed to change the existing law and practice in the District, so as to authorize the clerk to issue the attachment without a previous warrant from a judge or justice, and to prescribe the formalities which should precede and follow the issue of the writ; but nothing in those sections deny any previous right of the owner existing in the District to intervene in the proceedings for the protection of his property.”

Now the act of Maryland provides ‘ ‘ That if any person whatsoever, not being a citizen of this State, and not residing therein, shall or may be indebted unto a citizen of this State, or of any other of the United States, or if any citizen of this State, indebted to another citizen thereof, shall actually run away and abscond or fly from justice, or secrete him or herself from his or her place of abode, with the -intent to evade the payment of his or her just debts, such creditor, may in either case, make application to any judge of the general court, justice of the county court, or justice of the peace; and on oath ¡.and affirmation of such creditor, made before any judge of the general court, justice of the county court, justice of the peace of this State, or before any judge of any other of the United States, that the said debtor is bona fide indebted to him or her in the sum of $-, over and above all discounts, and at the same time producing the bond or bonds, bill or bills, protest bill, or bills of exchange, promissory note or notes, or other instrument or instruments of writing, account or accounts, by which said debtor is so indebted,” and upon oath or affirmation as to the- non-residence of the debtor, etc., “said judge of the general, justice of the county court or justice of the peace, shall be, and is hereby fujly authorized and required forthwith to issue his warrant to the clerk of the general or of the county court, as the case may require,” etc.

We are of opinion that the Act of June i, 1866, in force in this District, regulates merely the procedure for and after the issuing of the writ, and it leaves the character of the demands in actions at law upon which the writ of attachment may issue as it was theretofore under existing law, and that, if the Act of Maryland of 1795 requires that in order to justify the issuing of the writ of attachment, the amount due shall be directly ascertained by the contract, or that the standard upon which the amount may be computed shall be fixed by the contract, it is still essential in this District. This has been distinctly settled in the State of Maryland. Wilson vs. Wilson, 8 Gill., 192; Warwick vs. Chase, 23 Md., 154. In the case of Clark’s Executor vs. Wilson, 3 Wash. C. C., 500, Mr. Justice Washington, announcing the decision of the court, said (referring to the case of Fisher vs. Consequa, 2 Wash. C. C., 382): “The principle decided in that case was, that a demand arising ex contractu, the amount which was ascertained, or which was susceptible of ascertainment by some standard, referable to the contract itself, sufficiently certain to enable the plaintiff, by affidavit, to aver it or a jury to find it, might be the foundation of a proceeding by way of foreign attachmemt, without reference to the form of action, or the technical definition of debt, ‘the expression used in the law.’” And then he proceeded with the case under consideration, and said: /‘This, then, is a case in which unliquidated damages are demanded; in which the contract alleged as cause of action affords no rulé for ascertaining them; in which the amount is not and cannot, with propriety, be averred in the affidavit; and which is and must be altogether'uncertain until the jury have ascertained it, for which operation no definite rule can be presented to them. In our opinion, it has not one feature of resemblance to the case of Fisher vs. Consequa.

In the case of Warwick vs. Chase, the court refers to several cases, and among others to the case of Wilson vs. Wilson, 8 Gill., 192, and says: “The general rule in such cases is, that unliquidated damages, resulting from a violation of 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.”

In the case at bar the contract set up in the affidavits in support of the declaration and in the declaration itself is simply a contract to sell and deliver by a certain day certain goods. No standard is fixed by the contract by which the damages sustained for a breach of it can be ascertained. The statement of the contract itself, in the declaration and in the affidavits as well, is very indefinite. The affidavits do not show any specific amount of damage such as could be made the foundation for a writ of this character. Under the Act of 1866 the affidavits should be held insufficient to sustain the writ because of their indefiniteness. It is not necessary, however, to base the decison upon that ground. We are of opinion, that, inasmuch as this action is not brought to recover an ascertained indebtedness due under contract, but that the cause of action is breach of contract to deliver goods, and no Standard is fixed by the contract by which the amount of damages for its breach could be ascertained by computation, the'writ of attachment and garnishment was properly quashed by the court in special term, and its order should be affirmed; and it is so ordered.  