E. B. Williams & Co. v. Louisiana Lumber Co.

The opinion of the court was delivered by Breaux, J. Plaintiffs action is for damages. It is a wholesale lumber dealer, manufacturer, and exporter in New Orleans. The amount of the claim is fifteen thousand three hundred dollars for the violation, of'a contract.. A writ "of attachment was issued for part of this claim, eight thousand seven hundred and three dollars, for items which plaintiff avers were certain as to amount due.- But items for asserted injury to credit, loss of time; and others similar were omitted. [100] Plaintiff alleged that defendant is a non-resident corporation, a fact not disputed. Plaintiff, under garnishment process, seized the judgment which defendant had obtained in Barr and Hetterman vs. Henderson in the District Court and which is now pending on appeal in the Supreme Court. It is admitted by defendant that he bound himself to deliver to plaintiff two million feet of cotton-wood lumber on yard opposite the City of Shreveport on Red river in Bossier Parish, grades clear, common, and culls (mill culls and mis-sawed excluded). The clear grades were to be delivered in New Orleans for export at sixteen dollars and fifty cents per thousand and the common and culls were to be delivered at St. Louis for fifteen 75-100 dollars. This was also alleged, in substance, by plaintiff. Plaintiff avers that defendant failed to deliver the number of feet of lumber promised of the upper grades on which he expected a larger profit than he thought of realizing on the lower grades. He also avers that defendant failed to comply with the promise he had made to re-saw the mis-sawed lumber and that, in consequence of this failure and the failure to deliver the lumber timely, he was greatly damaged. Defendant contradicts plaintiff’s contentions for damages and denies that he was damaged at all, or, if damaged, that the damage was due in any manner to his default. Taking the case as a whole, defendant admits that he did not deliver the lumber sold, and shows that he, defendant, also met with disappointment in not obtaining the delivery of the lumber which he had previously bought from Henderson. Motion to Dissolve the Attachment. Defendant, in its brief on appeal, limits its ground to dissolve to the following, and, as we take it, has abandoned its other ground. The ground urged is that it was impossible for plaintiff to swear accurately to the amount due. In support of this ground, defendant urges that thd amount of the judgment of the District Court was so much less than the amount of plaintiff’s' claim, that if this court affirms the judgment, the attachment should be dissolved, as it would be evident that plaintiff was greatly mistaken in its affidavit. If one, in good faith, sues for the violation of a contract and claims a larger amount than is afterward decreed by the court to be due, the [101] accompanying attachment should be held good for the amount so decreed as due. The mere fact that plaintiff claimed too much, if claimed in good faith, is not to be taken as ground sufficient to dissolve the attachment and perhaps prevent him from recovering the claim due. It was not possible for plaintiff to swear accurately enough from his point of view. The evidence sustains his claim to part, and to that extent, the attachment is sustained.