Hough v. Kugler

Bartol, C. J., delivered the opinion of the Court. The vouchers or evidence of debt produced by the attaching creditors in this case, consist of articles of agreement entered into between Hough and wife, of the one part, and Kngler, of the other part; and an account, purporting to show the amount of money due by the appellee to the appellants, under the contract, to be $5,055.38; the amount of alleged indebtedness stated, in the affidavit. [194] The groundwork of the suit is the articles of agreement; and the first thing to be observed with respect to them, is that the covenants of the appellee are made with Lewis S. Hough alone, his wife, Amelia Hough, is therefore not a proper party, and is improperly joined as plaintiff in the suit. But apart from this objection, the material question arises whether the vouchers, filed constitute an evidence of debt within the meaning of the Code, Article 10, section 4; that is, whether the claim exhibited isjof such a nature as to entitle the appellants to maintain an attachment. It is well settled that to entitle a party to remedy by attachment the account and vouchers produced, must be sufficient to show on their fáce a prima facie debt due by the defendant to the plaintiff. Mears vs. Adreon, et al., 31 Md., 229. Secondly. The claim must arise ex contractu, and must not be in the nature of unliquidated damages, “ but the measure of damages must be such as the plaintiff can aver by affidavit to be due.” Fisher vs. Consequa, 2 Wash. C. C. R., 382. It was decided in Wilson vs. Wilson, 8 Gill, 192, and Warwick vs. Chase, 23 Md., 155, “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 damages.” Wc refer also to State, use of Bouldin, vs. Steibel, 31 Md., 37. Tested by this rule, we are of opinion the claim in this case, arising out of the alleged breach by the appellee of the covenants in the articles of agreement, is not of that fixed or definite kind which may be recovered by attachment. It is in its nature a claim for unliquidated damages, where the contract furnishes no measure or standard for their computation, and the true amount of which cannot be verified by affidavit. This is apparent from an examination of the terms and conditions of the agreement, which are numerous and complicated, embracing many things to be done and performed by the parties respectively, and the damages for the breach [195] of which are wholly unliquidated, and cannot be stated as a fixed, definite sum of money. The agreement contains this provision: “ Either party failing to comply with the conditions of this contract shall pay to the other, as fixed or liquidated damages, the sum of five thousand dollars, or more, if more damage shall be proved and it has been argued by the appellants that under this clause of the contract the appellants, in ease of a breach by the appellee, are entitled to recover at least the sum of $5,000 as fixed and liquidated damages. It was decided in Dawson vs. Brown, 12 G. & J., 60, and Lee vs. Tinges, 7 Md., 215, that a plaintiff in attachment may recover a less sum than that stated in the affidavit. But in this case the appellants have not proceeded for the recovery of the sum of $5,000 under this article of the agreement; and, in our opinion, even if they had attempted to do so, they could not maintain an attachment for that sum, because, though called liquidated damages, it is in its nature a penalty. In support of this construction we refer to Astley vs. Weldon, 2 Bos. & Pul., 346; Kemble vs. Farren, 6 Bing., 141; and Horner vs. Flintoff, 9 Mees. & W., 678. In the case last cited Baron Pakke said : “ The rule laid down in Kemble vs. Farren was, that when an agreement contained several stipulations, of various degrees of importance and value, the sum agreed to be paid by way of damages for the breach of any of them, shall be construed as a penalty, and not as liquidated damages, even though the parties have in express terms stated the contrary. * * * * * When parties say that the same ascertained sum shall be paid for the breach of any article of the agreement, however -minute and unimportant, they must be considered as not meaning exactly what they say, and a contrary intention may be collected from the other parts of the agreement.” This case, in our opinion, falls within the principle of Kemble vs. Farren. Some of the covenants on the part of the appellee ai’c of certain and fixed value; and the rule [196] applies which is universally recognized, viz: “Whenever the sum stipulated is to be paid, on the non-payment of a less sum made payable by the same instrument, it will always be held a penalty.” Sedgwick on Damages, 421 m, and cases there cited. (Decided 18th June, 1872.) Being of opinion, for the reasons stated, that the claim of the appellants, as exhibited by the articles of agreement and the account, is not within the attachment laws, we affirm the-judgment of the Circuit Court quashing the attachment. Judgment affirmed.