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,