E. Sondheimer Co. v. Richland Lumber Co.

PROVOSTY, J. The lower court sustained an.exception of no cause of action, and dismissed plaintiff’s suit. Plaintiffs allege that the defendant, a corporation organized under the laws of Wisconsin, now doing a sawmill business in Richland parish, La., entered, into a contract with them to manufacture for and deliver to them, on board cars at Maugham, La., so many feet of lumber, of such a description, at such a price, by such a date— all specified in the petition; and that if said contract is not complied with they will lose .the profits on said lumber amounting to so much — giving the exact amount. They allege, further, that defendant has never had a permanent domicile in this state, and is about to sell all the property it owns in this state and remove its said business from this state, without there being a possibility in the ordinary course of judicial proceedings of obtaining or executing a judgment against it prior to its departure. They pray for an attachment and further, as follows: “That defendant be ordered to comply with its said contract within a time to be fixed by your honor court, and in default of its so doing that there be judgment in favor of plaintiff and against it in the aforesaid sum of losses named with 5 per cent, from judicial demand, recognizing plaintiff’s privilege on property that may be seized by virtue of said writ, and that same he sold under said judgment. Pray that in so far as plaintiff’s demand may not he yet mature it be allowed to remain on the docket of this honorable court, they reserving the right to amend and ask for final judgment at the proper time.” [790] The contract is annexed to and made part •of the petition. It contains the following clause: “Time being of the essence of this contract, and second party having itself entered into contracts obligating itself to deliver same, based upon this agreement, first party covenants that it will begin the manufacture of said lumber in the month of December, 1905, and shall complete said contract within ten months from this date.” This suit was filed in June, 1906; that is to sgy, before the expiration of the delay for completing the contract. The president of the defendant corporation is alleged to be a resident of the parish in which the suit has been brought, and service of citation is asked to be made upon him; and the citation was made in accordance with the prayer. We take up and dispose of, seriatim, the reasons assigned by defendant, as we understand -them, why the petition is said not to show a cause of action. First. That plaintiffs are suing for both specific performance and damages, and that they cannot be entitled to both. If plaintiffs were doing what defendant here says they are, it would not furnish ground for an exception of no cause of action, but only for a motion, to elect. It would be a case, not of insufficiency of allegation, but of excess of prayer. Second. That defendant was not put in default. Defendant misconceives, here, the nature of the suit. The suit is not, as yet, a suit to compel defendant to perform the contract. As such it would be premature. The time for fulfilling the contract has not yet expired. The suit, as yet, aims at nothing more than to prevent defendant from disposing of its property, and leaving the state before judgment could be obtained against it in the ordinary course of judicial proceedings. Defendant has yet time to perform the contract, and the present suit is a demand that it do so, and it is, as such, a putting in default of the most peremptory character. As to putting in default by institution of suit, see article 1911, Rev. Civ. Code, and R. R. Co. v. Ganalh & Co., 18 La. 510-513. As to attachment by way of conservatory measure to a suit which the plaintiff “intends to institute against” the defendant, see Code Prac. art. 208; Bank v. Brewing Association, 49 La. Ann. 944, 22 South. 48; Neilson v. Pool, 17 La. 209; Catlett v. Heffner, 23 La. Ann. 577. In Bank v. Brewing Association, this court said that the proper practice was to ask for the attachment without asking for absolute judgment, reserving the right to ask for absolute judgment by a supplemental petition to be filed when the obligation should mature. Third. That the damages are too speculative, or uncertain, to support an attachment; in that the petition “does not allege how the losses or profits arise, or on what possible basis they are estimated — whether on future, or past, or present, prices, of lumber”; and also in that “defendant’s sawmill might burn pending the suit, and defendant be liberated from the contract”; and finally in that “the price of lumber might go down.” Touching the degree of certainty which a demand must possess in order to serve as a basis for attachment, see Morgan’s Louisiana & Texas R. R. v. Stewart, 119 La. 392, 44 South. 138. In the case of Williams & Co. v. La. Lumber Co., 105 La. 99, 29 South. 491, the claim was for the margin of profits on lumber, and the attachment was sustained, although plaintiff was found to have stated the amount of the damages too high. One of ■the clauses of the contract sued on is to the effect that the lumber which defendant is to deliver to plaintiff has already been sold by plaintiff. If the profits of which plaintiff alleges the loss are the margin of profits be [792] tween the two contracts, they are as exactly fixed and determinate as any amount could be. But if they are the margin between the contract price and the market price at the time of filing the petition, we do not see why they should not be sufficiently determinate to support an attachment. The danger of the market price going down is fully offset by the chance of its going up. Of course, the claim of damages would be too speculative to support an attachment if based on market price in the future. The court will not, however, on this exception of no cause of action, assume that the claim is so predicated; but, rather, that it is predicated on the margin between the two contracts or between contract price and market price at filing of suit. But the allegation is — and for the purposes of the exception of no cause of action it must be taken for true — that defendant is not going to fulfill the contract. If so, the damages will become due at the expiration of the time for fulfilling the contract, and the case simply resolves itself into that of an existing, but immature, obligation such as by express provisions of the Code (article 210 et seq.) may be protected by attachment. The present proceeding has been resorted to by plaintiff simply to prevent defendant from defeating the suit in damages which plaintiff “intends to bring” hereafter (Code Prac. arts. 208, 239), and which plaintiff will as a matter of certainty have the right to bring if the allegations of the petition are taken for true, as they must be on the present exception. The present case is distinguishable from those of Claflin v. Feibelman, 44 La. Ann. 520, 10 South. 862, Black v. Zacharie, 3 How. (U. S.) 485, 11 L. Ed. 690, Denegre v. Milne, 10 La. Ann. 324, Barriere v. Feste, 9 La. Ann. 535, Blanchard v. Grousset, 1 La. Ann. 96, and Hunt v. Norris, 4 Mart. (O. S.) 517, in that, in those cases, the liability sought to be made the basis of the attachment was not merely immature but as yet inexistent; so that at the time of the attachment there was no actual debt, mature or immature; whereas, in the present case, there is an actual existing obligation, and under the allegations of the petition, taken for true, that obligation represents a certain fixed value, and there is therefore a debt of some kind; and article 242, Code Prac., authorizes attachment to issue “in order to secure the payment of a debt, whatever may be its nature.” This language is, we think, broad enough to include a fixed contractual obligation, which, although not as yet for the payment of money, will, under the allegations, taken for true, be for the payment of money at its maturity. See Morgan’s La. R. R. v. Stewart, supra. Fourth. That although defendant is sued as a resident, the petition contains no grounds for attachment against a resident. The defendant is alleged to be about to sell all its property in the state and leave the state, without there being a possibility, in the ordinary course of judicial proceedings, of obtaining or executing judgment against it previous to, its departure. This suffices for sustaining an attachment. Code Prac. art. 240. The motion to dissolve is not involved in this appeal — it not having yet been tried in the lower court — plaintiffs not having yet offered their evidence upon it. There is at present before the court only the exception of no cause of action; for the trial of which the allegation that defendant is a nonresident corporation must be taken for true. Judgment set aside, and the exception of no cause of action overruled, and case remanded to be proceeded with according to law. BREAUX, C. J., dissents. LAND, J., takes no part.