Blick v. Mercantile Trust & Deposit Co. of Baltimore

• Citation: 77 A. 844,113 Md. 487
• Parties: BLICK v. MERCANTILE TRUST & DEPOSIT CO. OF BALTIMORE.
• Decision Date: 22 June 1910
• Court: Court of Appeals of Maryland

77 A. 844

113 Md. 487

BLICK v. MERCANTILE TRUST & DEPOSIT CO. OF BALTIMORE.

Court of Appeals of Maryland

June 22, 1910

Five Appeals from Baltimore City Court; Thos. Ireland Elliott Judge.

Action by Carroll B. Blick against James M. Cockins, in which the Mercantile Trust & Deposit Company of Baltimore, the National Marine Bank, the Drovers' & Mechanics' National Bank the Fidelity Trust Company, and the Fidelity & Deposit Company of Maryland were summoned as garnishees. From a judgment for the garnishee in each case, plaintiff in each case appeals. Affirmed.

Argued before BOYD, C.J., and BRISCOE, PEARCE, BURKE, THOMAS, and URNER, JJ.

Clarence A. Tucker and Joseph N. Ulman, for appellant.

Louis J. Burger and John Hinkley, for appellees.

PEARCE J.

On September 23, 1909, the appellant, Carroll B. Blick, issued an attachment out of the Baltimore city court against James M. Cockins, a nonresident of the state of Maryland, to recover the sum of $15,000 claimed to be due him for services renderedby him to said Cockins. This writ was laid in the hands of the Mercantile Trust & Deposit Company of Baltimore, the National Marine Bank, the Drovers' & Mechanics' National Bank the Fidelity & Trust Company, and the Fidelity & Deposit Company of Maryland as garnishees. The defendant appeared specially in each of these cases for the purpose of moving to quash the writ of attachment, and filed the same motion in each of the garnishee cases, alleging the following reasons therefor: (1) Because there was no sufficient affidavit filed. (2) Because the account filed was insufficient. (3) Because the short note filed was not sufficient. (4) Because no writ of summons was issued against the defendant, and no copy thereof was set up at the courthouse door. (5) Because the alleged indebtedness for which the attachment was issued was for unliquidated damages. (6) Because the claim sued on is not a liquidated claim. (7) For the reasons apparent on the face of the proceedings. The court quashed the attachment on the fifth and sixth grounds, and judgments was entered for the garnishee in each case, and the plaintiff has appealed in each case.

The affidavit is in the usual and appropriate form for an attachment against a nonresident debtor, and there was annexed to and filed with the affidavit the following statement of account: "Statement of Account. James M. Cockins, to Carroll B. Blick, Dr. To services rendered in making investments, collecting income, adjusting settlements, releasing mortgages, and acting generally as defendant's agent and superintending his financial affairs in the United States during the years 1900 to 1909, inclusive, at $1,500 a year, $15,000." The short note contained the common counts, and the following special count: "This suit is instituted to recover the sum of fifteen thousand dollars due and owing from the defendant to the plaintiff for services rendered by the plaintiff to the defendant in making investments, collecting incomes, adjusting settlements, releasing mortgages, and acting generally as defendant's agent, and superintending his financial affairs in the United States, during the years 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908, and 1909." It is obvious that the objection that the claim is not liquidated, and therefore cannot form the basis of an attachment such as that issued in this case, is the principal and fundamental objection.

In Steuart v. Chappell, 98 Md. 527, 57 A. 17, we were required to consider this question arising there under very similar circumstances, and much that was there said is precisely in point here. We shall repeat here some passages cited in that opinion as the most concise and authoritative statements of the general law upon the subject. Mr. Rood, in his work on Garnishment, says: "Demands, the amount of which cannot be ascertained by computation, but only by the verdict of a jury, or in other similar manner, are not included in the terms of statutes declaring what property and debts may be attached by garnishment." And, in accord with this general statement of the law, special provision is made in many states, including our own state, for attachments in cases arising ex contractu where the damages are clearly unliquidated, and in actions for wrongs independent of contract, upon compliance with special requirements, including a bond similar to that required in attachments for fraud. In Poe's Practice, § 415, that author said: "As the result of the authorities, it may be stated that the claim to be within the act must be one for an ascertained amount of liquidated indebtedness to which a plaintiff can properly swear, and the cause of action which must be filed with the declaration must be one which either on its face shows the liability of the defendant, and the amount of such liability, or which itself furnishes the standard or means of arriving at such liability." The rule stated by Mr. Poe is fully sustained by the Maryland cases. Warwick v. Chase, 23 Md. 161; Hough v. Kugler, 36 Md. 186; Orient Ins. Co. v. Andrews, 66 Md. 371, 7 A. 693; Williams v. Jones, 38 Md. 555; Smithson v. U.S. Tel. Co., 29 Md. 166. In the case last mentioned the court said: "Where a precise sum for damages is not agreed upon, and is not of the essence of the contract between the parties, the quantum of damages is unliquidated." In Butts v. Collins, 13 Wend. (N. Y.) 130, the rule was happily expressed as follows: "Unliquidated damages are such as rest in opinion only, and must be ascertained by a jury. They are damages which cannot be ascertained by computation or calculation, as, for instance, damages for not using a farm in a workmanlike manner, for not skillfully amputating a limb, for unskillfully working raw material into a finished fabric, and other cases of like character where no data are given for computation or any mode of calculation." In Eastman v. Thayer, 60 N.H. 575, where damages were claimed for nonperformance of covenants in a lease, the court said: "The ascertainment of defendant's claim requires the exercise of judgment, discretion, and opinion and not mere calculation or computation. Consequently it is for unliquidated damages." In Steuart v. Chappell, supra, where the claim was "for $1,000 for professional services," in quashing the attachment, we quoted the singularly clear language of the learned Judge Dennis in assigning his reasons for holding the claim to be unliquidated, and it is so conclusively applicable to the claim now before us that we reproduce it here. He said: "There is no agreement alleged by which the defendant bound himself to pay any particular sum, and the value of these services is put at what the plaintiff himself assumes them to be worth. This is by no means the real test of their value. The real test is what they are reasonable worth, andthat must be determined by a jury, after testimony." In each case the question is whether the contract itself fixes the amount or furnishes a standard by which the amount may be certainly determined. If it does, the attachment will lie. If it does not, it will not lie.

The cases of Williams v. Jones, 38, Md. 555, and Dirickson v. Showell, 79 Md. 49, 28 A. 896, are cases where the attachment was sustained, and they are good illustrations of the application of the rule favorably to the plaintiff. In the former case a bond conditioned for the payment of money failed to state the exact amount it was intended to secure, but it contained all the elements or data necessary to enable the court to ascertain the amount due thereon, and to justify the plaintiff in verifying it by his oath. In the latter case the contract was to sell and deliver...