Sher v. Church

• Decision Date: 04 June 1919
• Parties: SHER v. CHURCH et al.
• Court: New Jersey Supreme Court

107 A. 57

SHER

v. CHURCH et al.

Supreme Court of New Jersey.

June 4, 1919.

Syllabus by th$ Court.

Argued February term, 1919, before PARKER and MINTURN, JJ.

Burgess A. Cruden, of Bayonne, for prosecutors.

Alexander Seclow, of Bayonne, for respondent.

PARKER, J., The court below discharged a rule to show cause why the writ of attachment, which is the foundation of the case, should not be quashed, and this is the basis of the present review.

The affidavit for the writ alleged that prosecutors were nonresident, and that they were indebted to plaintiff in $500, as nearly as he could ascertain, and went on to specify that this sum was due "for failure to deliver goods purchased from them and for breach of contract to deliver goods in accordance with agreement, and for other losses sustained by reason of their failure to ship hay in accordance with their agreements."

The state of demand counted on a sale of hay, which prosecutors "agreed to deliver in good condition, but the said hay was delivered by defendants in poor condition. Said defendants also sold to plaintiff another car of hay, but the hay received was not the same quality as ordered." Then follows a bill of particulars, giving car numbers and amounts claimed as "damages" on each car.

Prosecutors make the point, and we think it well taken, that the claim is manifestly not for any debt, but for unliquidated damages. If this be so, plainly attachment will not lie. Jeffery v. Wooley, 10 N. J. Law, 123; Heckscher v. Trotter, 48 N. J. Law, 419, 5 Atl. 581.

It is said that the right to attach is supported by the more recent cases of Sullivan v. Moffat, 68 N. J. Law, 211, 52 Atl. 291, and Laura v. Puncerelli, 102 Atl. 433 affirmed without opinion 105 Atl. 894; but neither case is in point. In Sullivan v. Moffat the court dealt with the state of facts set up on the plaintiff's affidavit, and which it intimated he might not be able to prove at the trial. It pointed out that there was a specific promise to pay a certain sum, from which plaintiff allowed certain deductions for cash, "and for materials to be furnished and labor to be performed at the expense of the defendants, the cost of which appears on the face of the account to be certain, and presumably can be ascertained by some definite standard."

In Laura v. Puncerelli the writ was supported (apart from circumstances indicating a general appearance) on the theory, which there was evidence to sustain, that, although at first the claim was purely for unliquidated damages in tort, it was turned into a contract obligation by defendant agreeing for lawful consideration to pay the cost of...