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