Hart v. Barnes

• Decision Date: 14 November 1888
• Citation: 24 Neb. 782,40 N.W. 322
• Parties: HART v. BARNES.
• Court: Nebraska Supreme Court

24 Neb. 782

40 N.W. 322

HART

v.BARNES.

Supreme Court of Nebraska.

November 14, 1888.

Syllabus by the Court.

When a person undertakes any employment, trust, or duty, he thereby, in contemplation of law, impliedly contracts with those who employed him to perform that which he has undertaken with integrity, diligence, and skill; and if he fails to do so it is a breach of contract.

In cases of bailment, at common law, there has always been a choice of forms of action, between actions on the case and assumpsit. Case lies for breach of duty, and assumpsit for breach of promise. A duty arises out of a promise, and the law implies a promise out of most duties. The Code, while abolishing the forms of actions, has preserved to a suitor all the rights and remedies known to the law. Therefore, if a promise is implied, either from a breach of duty or from the undertaking of the defendant, an attachment in a proper case will lie.

The affidavit for an attachment must show “the nature of the plaintiff's claim.” If the claim appears in the affidavit to be one for which an attachment may issue, but the statement is not as full as may be desired, reference may be had to the petition.

Error to district court, Merrick county; POST, Judge.

Action for the recovery of money by Levi C. Hart against Nelson Barnes. From an order discharging an attachment, plaintiff brings error.John Patterson, for plaintiff in error.

A. Ewing and J. W. Sparks, for defendant in error.

MAXWELL, J.

The plaintiff brought an action against the defendant in the district court of Merrick county to recover the sum of $9,221.33, and made and filed an affidavit for an attachment against the property of said defendant. An attachment was thereupon duly issued, and levied on the defendant's property. The attorney for the defendant thereupon filed a motion to dissolve the attachment, for the following reasons: “(1) That the cause of action is not one in which the law allows an attachment; (2) because the facts stated in the affidavit are not sufficient to justify the issuing of the same; (3) because the statements of facts in said affidavit are untrue.” This motion, after due notice, was submitted to one of the judges at Columbus, and the attachment discharged. In sustaining the motion, the judge filed a written opinion, which is now before us, in which he sums up the reasons for discharging the attachment as follows: “My conclusion is, therefore, that the attachmentshould be discharged for the reasons: First, that the cause of action set out in the petition is for a tort, and cannot be aided by the provisional remedy of attachment; second, that the affidavit is not sufficient to authorize the attachment, because it does not appear therefrom that the action is upon contract. The conclusion renders it unnecessary to discuss the testimony in the case. In fact I have had no time to read over the numerous affidavits filed by both sides.” It will be observed that the decision is predicated on two grounds: (1) That the cause of action stated in the petition is for a tort, and therefore an attachment will not lie; and (2) that the affidavit for an attachment fails to show that the action is founded upon contract. The petition is as follows: “The plaintiff complains of the defendant for that said defendant is indebted to said plaintiff in the sum of $9,221.33, for so much money received from said plaintiff, in the amounts, and at the dates, and upon the terms and conditions herein named, to-wit: On the 18th day of January, A. D. 1886, $1,500; on the 8th day of April, A. D. 1886, $2,000; on the 19th day of April, A. D. 1886, $2,000; on the 24th day of April, A. D. 1886, $500; on the 15th day of March, A. D. 1887, $1,500. Said several named sums were received by said defendant from said plaintiff to be loaned by said defendant for said plaintiff, and for the use and benefit of said plaintiff, and at the expiration of each loan so made by said defendant, and upon payment thereof to said defendant, he, the said defendant, was to pay the same to said plaintiff or reloan the same, as plaintiff might direct. Plaintiff further alleges that said defendant did not loan said sums of money as agreed upon for the use and benefit of said plaintiff, but applied and appropriated the same to the use and benefit of said defendant, and refuses to pay the same to said plaintiff, though often requested so to do. Plaintiff further alleges that no part of said sum has been paid, and there is now due from the defendant to the plaintiff the sum of $9,221.33, with interest thereon from the 28th day of February, A. D. 1888, at 7 per cent. per annum; wherefore plaintiff prays judgment for said sum of $9,221.33 and interest, and costs of suit.” The affidavit for an attachment is as follows: “Levi G. Hart, being first duly sworn, deposes and says that he has commenced an action against Nelson Barnes in the district court of Merrick county, Neb., to recover the sum of $9,221.33, now due and payable to the plaintiff from the defendant, on account for money had and received. Affiant further says said claim is just, and that he ought, as he believes, to recover thereon the sum of...