Hecksher v. Trotter

• Decision Date: 26 August 1886
• Citation: 48 N.J.E. 419,5 A. 581
• Parties: HECKSHER v. TROTTER.
• Court: New Jersey Supreme Court

5 A. 581

48 N.J.E. 419

HECKSHER

v. TROTTER.

Supreme Court of New Jersey.

August 26, 1886.

In attachment. On rule to show cause.

C. Parker, for defendant.

H. ft Pitney, for plaintiff.

DIXON, J. On December 16, 1884, the plaintiff made affidavit that the defendant was non-resident, and was justly indebted to him in the sum of $35,000 for rents and royalties accrued upon a certain indenture of lease; and, on filing the affidavit with the clerk of this court, writs of attachment were issued to the sheriffs of Sussex and Mercer. Under these writs personal property valued at $25,894 was attached. Subsequently the defendant appeared and pleaded in the suit, and thereafter, on May 4, 1886, obtained a rule that the plaintiff show cause why the defendant should not be permitted to give a bond in double the sum of $12,000, and thereupon have his property released and discharged from the lien of the writs, on the ground that the residue of the sum claimed in the plaintiff's affidavit consisted of damages in covenant, for which no attachment can legally issue. On the return of this rule it appears that the lease referred to is dated April 10, 1879, and demises to the defendant a vein of Franklinite ore for 15 years, reserving to the lessor, from whom the plaintiff has derived title, a rent or royalty of two dollars a ton for all the ore mined and removed from the premises, and containing a stipulation on the part of the defendant that he will mine and remove at least 10,000 tons of ore per annum. It also appears that the plaintiff's claim covers the period from April 10, 1883, to October 10, 1884, and is for 6,439 tons of ore mined and removed, and for the defendant's failure to mine and remove the stipulated quantity.

The principal question raised upon the rule is whether attachment will lie for a demand accruing by reason of a breach of this covenant to mine and remove 10,000 tons per year. The general rule established in this state is that "an attachment will not lie for unliquidated damages, and can be used only when the demand is for a sum certain." Schenck v. Griffin, 38 N. J. Law, 462, 467. "An attachment will lie where the cause of action is founded upon contract, and is of such a nature that the plaintiff 'would formerly have been' entitled to hold the defendant to bail upon filing an affidavit of the cause of action. When the cause of action arises ex delicto, or is of such a nature that bail 'could not have been' required without the order of a court or judge, resort cannot be had to this remedy." Jeffery v. Wooley, 10 N. J. Law, 123; Boyd v. King, 36 N. J. Law, 134.

With regard to bail, Mr. Petersdorff says:

"The general rule adopted by all the courts is consistent and uniform that, where the cause of action arises from a debt or money demand, or where it sounds in damages, but the damages are capable of being ascertained with certainty, by mere arithmetical computation, the defendant may be holden to bail as of course; but, on the other hand, where the cause of action consists merely in a right to recover some damages, but those damages are general, indefinite, and undetermined, or incapable of being reduced by calculation to a proper degree of certainty, without the intervention of a jury, the defendant cannot be holden to bail as of course." Petersd. Bail, 16, (10 Law Lib.)

"In particular, in an action of covenant, the defendant cannot be held to bail as of course, unless the covenant be for the payment of a sum certain." Jeffery v. Wooley, ubi supra.

Thus far the decisions in New Jersey carry us. When we look to the decisions in other states, we find most of them to be inapplicable, because they rest upon rules inconsistent with those already established here. But the cases of Fisher v. Consequa, 2 Wash. C. C. 382; Clark's Ex'rs v. Wilson, 3 Wash. C. C. 560; Wilson v. Wilson, 8 Gill, 193; and Warwick v. Chase, 23 Md. 154,—seem to proceed on the lines which our own courts have laid down, and hence are useful as illustrations of the rule.

In Fisher v. Consequa the defendant had bound himself to put on board ship, at Canton, a cargo of teas of the very first quality, for the Amsterdam market, and, if they did not prove of such quality at the sales in Amsterdam, to make good all deficiencies. At the sales in Amsterdam the teas proved to be of inferior quality, and worth $4,500 less than teas of the first quality. The court held that attachment would lie for the deficiency.

In Wilson v. Wilson the defendant sold flour to the plaintiff, and guarantied that it should pass with the inspector as superfine, and that, if it did not, they would make such allowance as was customary at the place of inspection for the difference between flour of the grade certified by the inspector and superfine flour. The flour was certified by the inspector to be of an inferior grade, and the difference in value, according to the custom, was 50 cents a barrel. The court held that the difference could be sued for by attachment.

In both of these cases the standard for measuring the damages was fixed by the contract; the damages being the difference in value of two articles, the value of which was already determined either by the sale of the articles themselves, or by the market price of other articles of like value. Damages so ascertained, or by calculation ascertainable, could properly be sworn to by the plaintiff.

In Clark's Ex'rs v. Wilson the plaintiff attached for damages arising out of a breach of the defendants' covenant in a charter-party to employ a vessel for a designated voyage, at £670 per month. The plaintiff swore that the voyage would have consumed 24 months, and rated his damages accordingly. The court held that the length of the voyage was...