Messenger v. Dunham

Riddick, J., (after stating the facts). The first contention is that the attachment was not lawfully issued. The attachment having been granted on the ground that the defendant was a non-resident, and the claim of plaintiff set out in the third paragraph being for unliquidated damages, it is contended for that reason that the court could not lawfully sustain the attachment or order a sale of the property. Our statute provides that an attachment “shall not be granted on the ground that the defendant or defendants or any of them is a foreign corporation or non-resident of this state for any claim other than a debt or demand arising upon contracts.” Sand. & H. Dig., sec. 325. This restriction of the right to attach to debts and demands arising upon contract is for the purpose of excluding actions for torts and actions where “the contract relations between the parties do not furnish a basis upon which the measure of liability may be ascertained.” 1 Wade, Attachment, sec. 12. The action in this case was founded upon a demand against the- defendant for refusing to perform a contract which he had made with the plaintiff. This demand arose out of, and the measure of damages in the action depended upon, and was controlled by, the contract. The word “demand” is broader than the word “debt;” and although the damages claimed were unliquidated, still we are of the opinion that the claim was “a demand arising upon contract,” within the meaning of the statute. Jones v. Buzzard, 2 Ark. 415; Lenox v. Howland, 3 Caines, 323; New Haven &c. Co. v. Fowler, 28 Conn. 103. It is further said that the damages allowed are ° excessive. But the question was peculiarily within the province of the jury to determine. There was evidence to support the verdict, and the case is not one that would justify us in disturbing the judgment of the circuit court on that point. Judgment affirmed.