Beckwith v. Baldwin

COLLIER, C. J. The act of 1833, “concerning attachments,” provides that “ a writ of attachment may in all cases issue against the property of a debtor legally subject to the [725] process of attachment, although the debt or demand be not due ; which attachment shall be a lien on the property attached, until such debt or demand becomes due, when judgment shall be rendered and execution issued.” [Clay’s Dig. 56, § 7.] In Jordan v. Hazard, 10 Ala. Rep. 221, it is said that a motion to quash an attachment is not revisable on error, and the regularity of the process cannot be questioned by a demurrer to the declaration; for this would only bring to view the declaration itself. But it was added, the defendant whose estate has been attached for a cause not authorized by law, was not remediless; “and we think the mode adopted in Pennsylvania, by a rule on the plaintiff to show cause why his attachment should not be dissolved, judicious and proper.;” Our statute uses the term “ debt pr demand,” and requires the plaintiff or his agent “to swear to the amount of the sum due,” and as this could not be done where the damages were .uncertain, it would seem to follow that an attachment would not lie. But the introduction of the term “ demand” into the act, indicates that the legislature did not intend to confine the remedy to those cases where a debt, in the technical sense of the term, existed. Further, an attachment is intended to coerce an appearance where the personal service.of process cannot be effected, and a reasonable interpretation .of the act'requires an extension of the remedy to all cases of contract, where by the terms of the contract, or the law acting upon it, the amount due, or the damages resulting from a breach are ascertained. This conclusion is warranted :by .the considerations we have stated, as well as the necessity from which it will often relieve a party of invoking the extraordinary powers of chancery. [Weaver v. Puryear & Williamson, 11 Ala. Rep. 941.] In addition to this, it fmay.be remarked that the act cited, declares “the attachment law-of this State shall not be rigidly and strictly construed.” [Clay’s Dig. 59, § 17.] It will be observed, that the defendant did not ask a rule .on the plaintiff to show cause why the attachment should be •dissolved ; and if the refusal to quash could be revised, we .should be compelled to decide that the motion was rightly •denied. The affidavit affirms the indebtedness of the de [726] fendant in a sum certain, states how much is due and when the residue wili become due, the writ conforms to it; and upon their face the proceedings are altogether regular, so, that if the demurrer to the declaration could reach them, they could not be affected by it. Looking to the affidavit and attachment alone, we discover nothing of which their irregularity can be predicated — they are fully supported by the seventh section of the attachment law. If the damages claimed by the plaintiff were ascertained by the terms of the contract on which he placed his right to recover, it will follow from the citations we have made, that the remedy pursued is altogether proper. To this question, as well as the adaptation of the declaration to the proof, we wili now address ourselves. By a statute passed in 1832, it is enacted, that “ It shall not be required of the plaintiff, in any suit by attachment, founded upon a cause of action not due, to file his pleadings before the first term of the court, after such cause of action falls due, and the same may be dated as of the term when filed. [Clay’s Dig. 333, § 113.] This provision was doubtless intended to enable the plaintiff to declare upon the cause of action as it exists after maturity of the debt or demand, where an attachment has previously issued, so that he set out his “ debt or demand” as past due, instead of becoming due in futuro. In McLendon v. Godfrey, 3 Ala. Rep. 181, we said, “if the defendant has prevented a performance, under such cir-camstances as would entitle the plaintiff to recover as much as he would, had the contract been entirely executed on his part, then perhaps it may be unnecessary to alledge in the pleading any matter of excuse. [5 B. & C. Rep. 638; 2 D. & R. Rep. 367. See further on this point, Poague v. Richardson, Litt. Sel. Cases, 134; Holt v. Cueme, Id. 499.] So where the plaintiff is prevented from the performance of a verbal contract by the defendant, a recovery may be had on the money counts, in assumpsit, when the damages resulting from a breach are not unliquidated. Accordingly, it has been held, that a contract to pay a gross sum for the teaching of certain pupils for an entire session of a school, if they are taken away without any fault of the teacher, or other occurrence which entitled the parent to consider the contract as [727] rescinded, the teacher may recover the entire sum agreed to be paid. See also, 1 Chit. Plead. 298; 1 East’s Rep. 58 ; 11 Id. 285; 1 Taunt. R. 12; 5 B. & C. Rep. 638. In Davis v. Ayres, 9 Ala. Rep. 292, it was decided that where there was an express agreement for particular services for a definite time, and the defendant discharged the plaintiff before the time has elapsed, so that he is prevented from performing the services, he must declare on the special agreement. But if the plaintiff does not seek redress until after the time has expired, indebitatus assumpsit will lie. See also 1 N. Rep. 330; 2 Stark. Rep. 227; 2 B. & P. Rep. 582. In the case cited from 9 Ala. Rep. we held, that where one party stipulates with another, to pay him fifty dollars per month, for four months, for his services as a clerk in a store, and then refuses to allow the services to be performed, without a sufficient cause, the party engaged as a clerk may immediately commence an action against his employer, and recover not only the damages sustained by the breach of contract, at the time suit was brought, but such as may be developed up to the time of the trial. If the plaintiff offered to perform his contract, was willing and ready to do so, and the defendant refused to receive his services, there can be no doubt but he is entitled to recover the sum agreed to be paid him. It was competent to have sued upon the refusal of the defendant to allow the plaintiff to enter upon the employment agreed on either by suit instituted in the ordinary form, or by attachment. This point is too clearly and unquestionably settled by our own decisions, and the statute regulating proceedings by attachment, to require a further remark in its support. In respect to the declaration, we have seen that the statute does not require it to be filed, until after the expiration of the period when the service was to have been rendered; and that after that time the plaintiff, upon showing that he was, without, cause prevented from performing his part of the contract, may recover for work and labor, <fcc. The declaration is unobjectionable in itself, and the demurrer to it was properly overruled. No question is raised upon the record as to [728] the authority of Case to bind the defendant by the contract which he entered into with the plaintiff. That was doubtless a conceded point, or satisfactorily proved. The record does not bring to our view an available error, and the judgment of the county court is therefore affirmed.