Warwick v. Chase

Cochran, J., delivered the opinion of this Court: This attachment was issued by the appellant, to recover the sum of $9,518.58, damages claimed to be due from Francis Le Breton & Co., his agents and consignees, at Rio dc Janeiro, for their delay in selling a shipment of flour, and failure to invest the proceeds in a return cargo of coffee. The motion to quash proceeds on the ground, that the damages claimed are not liquidated, and there [160] fore not recoverable by attachment. It is contended', hot^ ever, on the other side, that the claim arose, ex contractu, and although for damages, ndt liquidated according to the strict sense of the terna, yet so far susceptible of ascertainment by a standard fixed by the contract, that the amount could be averred in the affidavit, as well as found by the' jury. This proposition presents the material question for consideration in this case. The appellant charges Le Breton & Co., with damages “for not selling and investing in a return cargo of coffee, a cargo of Richmondflour, shipped per Baric Glara Haxall,” from Richmond, Va., in September 185T, the amount of which he ascertains by a hypothetical account stated, to' show what profits would have been his, liad the proceeds of the flour been invested in a return cargo of coffee, and the same received by him at Richmond, by the 20th March 1858. The claim is substantially for lost profits on the ruling prices of coffee in the Richmond market at that date, and the account by which the amount of the claim is shown, necessarily assumes, that the return voyage, both as to perils of the sea and time of completion, was at the risk of Le Breton & Co, We must remark, however, that no such undertaking on their part, can be found from any of the papers filed with the affidavit in this case. On the com trary, all the risks and contingencies of the proposed adventure were on the appellant; and to subject his agents at Rio to liability for damages, to be ascertained by the standard of market values at Richmond, it was not only essential that the vessel should Láve made the home voyage with safety, but that all, the facts necessary to fix the standard should have occurred. The duration of a voyage, until completed, is uncertain, and it was impossible in the nature' of things, for the appellant to fix any certain date at which the Clara. Haxall would have reached Richmond, had she received his return cargo according to his first letter of instructions; and of course, equally impossible for him to fix the standard of his damages by the prices then ruling in [161] that market. In an ordinary suit for damages, where the rule adopted in Bell vs. Cunningham, 3 Peters, 69, might bo applied, we do not doubt that a jury, looking to all the facts and circumstances likely to affect the duration of a proposed voyage, might find a day at which such a voyage, if broken up, should have been completed, and also find a market price then ruling, that could be applied as a standard or measure of the damages sustained. But that is not the case here. To sustain, this attachment, it is necessary that the standard for ascertaining the amount of damages claimed, should not only appear, but that it should be fixed and certain, and in no degree dependant on facts either speculative or uncertain. The particular measure insisted on, as we have endeavored to show, is altogether hypothetical. Facts necessary to give it certainty are assumed, and it was impossible, from the nature of the case, for the appellant to fix upon the market value of any given day as the true standard for ascertaining the amount of his claim; and for that reason he could not aver it. But conceding this standard, in legal contemplation, to be the true one, does the alleged contract so indicate it as to warrant the statement of a claim recoverable by attachment ? The alleged default of Lo Breton & Co., was in not selling and investing in a return cargo of coffee, a cargo of flour, according to instructions forwarded by the appellant. No express contract on their part is shown, and their liability depends, as a matter of course, on the contract, which the law presumes from the nature of the transaction, and the general relation of the parties. All the law could presume in such a case, was a simple undertaking to comply with- the instructions given, and that, without more or less, constitutes the contract, with which we have to deal. The general rule is, that unliquidated damages, resulting from the violation of a contract, cannot be recovered by attachment, unless the contract affords a certain measure or standard for ascertaining the amount of the damages; and the cases cited in the [162] course of the argument, as authorities on this .point, show that the standard should he a subject matter of the contract. In Fisher vs. Consequa, 2 Wash., 382, the contract was, to deliver teas of a certain quality, and on failure to do so, to pay the difference between teas of .such a quality and such as should -he delivered. There the standard was fixed by the contract; and so, also, in Wilson vs. Wilson, 8 Gill, 192. In the case of Clark vs. Wilson, 3 Wash., 560, where an attachment had issued to recover damages for the non-performance of the stipulations of a charter party, the Court, after reviewing the case of Fisher & Consequa, dissolved the attachment, because the contract did not show a standard by which the damages, consequent upon its violation, were to he ascertained. As we have said, the proposition generally stated is, that the standard must be shown by the contract, without the aid of inferences from extrinsic facts or circumstances. The question then, whether the contract in this case fixes or shows a standard for ascertaining the damages claimed, admits of but one answer. The contract is one which the law presumes, and, resting in presumption, it could not go beyond a simple undertaking to comply with the appellant’s instructions. (Decided May 26th, 1865.) We think on the whole, that the motion to quash was properly sustained by the Court below, and shall therefore affirm the judgment. Judgment affirmed.