Coats v. Arthur

• Decision Date: 13 April 1894
• Citation: 5 S.D. 274,58 N.W. 675
• Parties: COATS, Plaintiff and respondent, v. L. J. ARTHUR, Defendant and appellant.
• Court: South Dakota Supreme Court

5 S.D. 274, 58 N.W. 675 (1894)

COATS,

Plaintiff and respondent,

v.L. J. ARTHUR,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, S.D.

Hon. Frank R. Aikens, Judge

Affirmed

Wynn & Nock, Sioux Falls, S.D.

Attorneys for appellant.

Davis, Lyon & Gates, Sioux Falls, S.D.

Attorneys for respondent.

Opinion filed April 13, 1894

CORSON, P. J.

The plaintiff brought an action against the defendant to recover damages for breach of contract. The defendant being a non resident, the plaintiff sued out an attachment. The affidavit for the attachment (omitting the formal parts) is as follows:

“That a cause of action exists against the defendant and in favor of the plaintiff herein, and the amount of said plaintiff’s claim therein is nine hundred and sixty-eight dollars, and the ground thereof is as follows: That is to say, that on or about May 9, 1891, at Chicago, Illinois, the defendant, for a valuable consideration, sold, and conveyed by warranty deed, to the plaintiff, the following premises situated in Chicago, Cook county, Illinois, to-wit, lots 19 and 20 in block 8, in Eames’ subdivision of the northeast quarter of the northeast quarter of section 17, in township 38 of range 14 east of the 3rd P. M., and then and there agreed to and with the plaintiff to complete the buildings upon said premises, and to surrender to the plaintiff the keys and possession of said premises, not later than May 12, 1891; that the defendant hereafter failed and neglected to complete said buildings, and to surrender to the plaintiff the keys and possession of said premises, until August 1, 1891, at which last-named date the same were delivered to the plaintiff, and thereby the plaintiff was deprived of the use and rent of said premises from and after May 12, 1891; that the rental value of said premises from and after May 12, 1891, was and is the sum of $180 per month, amounting to $474 to August 1, 1891; that since said last named date, by reason of the unfavorable season of the year for that purpose, the plaintiff has not been able, although he has made diligent efforts therefor, to rent said premises for so large a sum, by $130 per month, as he would if the same had been delivered to him at the time agreed, to plaintiff’s damage in additional sum of $494 from August 1 to November 24, 1891, making the total amount of damages sustained by the plaintiff from May 12 to November 24, 1891, by reason of defendant’s failure to complete said buildings, and to surrender the keys and possession of said premises to plaintiff, at the agreed time therefor, to-wit, May 12, 1891, the sum of $968; and that the defendant, L. J. Arthur, is not a resident of this state, but resides at the city of Evanston, county of Cook, and state of Illinois.”

The defendant appeared specially, and moved the court to dissolve and discharge the attachment upon the following grounds:

“(1) That the affidavit upon which said attachment was issued does not state or show a cause of action against defendant in said action, arising on contract for the recovery of money only, or for the wrongful conversion of personal property, nor the grounds thereof. (2) That the court did not have jurisdiction to issue said warrant of attachment. (3) That said attachment was not issued in any of the cases in which the statute authorizes the issuance of a warrant of attachment. (4) That there is no affidavit in said action, required by the statute for the issuance of a warrant of attachment. (5) That the court, in said action, has no jurisdiction over the defendant, or over his property. Said motion will be made upon the affidavit for the attachment, and upon all the other papers filed and of record in said action.”

The learned counsel for the appellant very fairly states the question presented by this appeal as follows:

“It is not claimed that the foregoing statement of facts shows an action for the wrongful conversion of personal property, but it is claimed by the counsel for respondent in this case that said statement does show an action arising on contract for the recovery of money only, and the court below so held. The appellant denies this, and claims that said statement does not show an action arising on contract, for the recovery of money only, and this is the only contention in this case.”

The question presented is an important one, and involves a construction of the statute of this state upon the subject of attachments.

Section 4993, Comp. Laws, provides that:

“In an action arising on contract for the recovery of money only; or, in an action for the wrongful conversion of personal property, … the plaintiff … may have the property of such defendant … attached.”

And section 4995 provides that:

“The warrant may issue upon affidavit stating: (1) That a cause of action exists against such defendant, specifying the amount of the claim and the ground thereof.”

What is the proper construction to be placed upon the language, “in an action arising on contract for the recovery of money only,” taken in connection with the statement required in the affidavit, “specifying the amount of the claim and the grounds thereof?” Counsel for appellant contend that as ,the language, “in an action arising on contract for the recovery of money only,” is used in section 4894, Comp. Laws, relating to summonses, distinguishing between the two classes, has been construed by the courts of New York, the same language in the attachment law should receive the same construction. But the courts of New York, under an attachment law identically the same as our own, prior to its amendment, held that the language as used in the attachment law, should not be controlled by the construction of the same language in the law relating to summonses; and in thus holding, I think, that court was correct. The objects the two statutes were designed to accomplish are very different, and while, in the one case, the language might very properly be strictly construed to carry out the intention of the legislature, in the other the language might properly be given a broader and more enlarged construction, to carry out the intention of the lawmaking power. In Lawton v. Kiel, 34 How. Pr. 465, Judge Ingrahm says:

“I do not think the cases which have been decided as to the form of the summons should be considered as controlling in regard to the issuing of attachments.”

In U. S. v. Groff, 67 Barb. 304, Daniels, J., speaking for the court upon this question, says:

“Very different considerations, required by the history and object of the section providing for what demands attachments may be issued, have been applied to its construction. To promote the efficiency of that remedy, it has been held to include actions on contracts for the recovery of even unliquidated damages, where a proper disclosure of the grounds of the claim supplies practicable means for determining its amount. Lawton v. Kiel, 34 How. Pr. 465; Clews v. Railroad Co., 2 Hun. 379. And this demand is within the section, under that construction.”

It appears, therefore, that in that state from the decisions of which, upon the subject of the summons, the counsel for appellant quote mainly in support of their contention, the decisions do not recognize the rule contended for, but clearly indicate that the phrase in the attachment law is to be differently construed. It will be observed that the language used in the attachment law of this state is broad and comprehensive enough to include all actions on contract for the recovery of money only, whether the damages are liquidated or unliquidated. There seems to be no limitation, other than that the action must be one arising on contract, and be for the recovery of money only. But in my opinion this language must be construed with reference to the statement to be made in the affidavit, and that the section relating to the affidavit does further limit the language used to claims, the amount of which can be definitely specified. The claim must, therefore, be for some definite, ascertained amount, or an amount capable of being definitely ascertained and made certain by the contract and the statement in the affidavit. This is further evidenced by the third subdivision of section 4995, which provides for an attachment when it appears “that the debt was incurred for property obtained under false pretenses.” In this subdivision the term “debt” is evidently used as synonymous with “claim,” in the first subdivision. “Arising on contract,” therefore, must, I think, be construed to mean a debt or claim ascertained or ascertainable by reference to the contract, or that can be definitely fixed by the rules of law and which is made to clearly appear by the statement in the affidavit of the grounds of the claim. This would include all claims for damages, in which, from the contract, and facts stated in the affidavit, a court, on applying the law, can definitely determine the amount which plaintiff is entitled to recover. In such a case the plaintiff can specify definitely the amount of his claim; and it would exclude all cases where the amount of the claim can be determined by no fixed rule of law, but is to be determined entirely by the opinion of a court or jury. An action for breach of contract of marraige well illustrates the latter class of cases. No court, from the facts stated in the affidavit, could determine by any known or fixed rule, the amount the plaintiff was entitled to recover. The contract being established, no facts could be stated, or evidence offered, that would enable the court to determine the amount which the plaintiff would be entitled to recover, under any known or fixed rules of law. Damages might be given for any sum within the ad dainnum clause. It is a question of damages, purely, governed by no definite or fixed rules, and therefore no attachment will lie in such an action. This is also well illustrated in the case of Wilson v. Manufacturing Co, 88 NC 5. That was an action upon a...