#### HUGG AND BELL *vs.*BOOTH AND PORTER.

Unliquidated damages, such as damages, which in their nature are uncertain, for the breach of an agreement, cannot be made the subject of attachment under our Attachment Law.

Appeal from the Superior Court of Law of Craven county, at Spring Term, 1842,- his Honor Judge Battle presiding.

This was a proceeding by attachment against one Seldon Tryon, in which the defendants, Booth and Porter, were summoned as garnishees, upon the allegation that they were indebted to said Tryon. In their garnishment the defendants denied that they owed Tryon any thing, and thereupon at the instance of the plaintiffs an issue was made up to try *283the fact. On the trial, the plaintiffs, in order to prove the indebtedness of the defendants to Tryon, produced the instrument, of which the following is a copy:

•“ This may certify that if Mr. Seldon Tryon should wish to purchase of us tin-ware at our wholesale prices within twelve months from date, and should have Otis Porter’s note in his possession, we will take the same in payment.

BOOTH & PORTER.”

Newbern, May 13th, 1836.”

They also produced four notes, of which the following are copies:

*“*317 75. Six months after date I promise to pay Seldon Tryon the sum of three hundred and seventeen dollars and seventy-five cents, for value received, as witness my hand and seal, this 10th of June, 1836.

OTIS PORTER, (Seal.)”

“ Eight months after date I promise to pay Seldon Tryon the sum of three hundred and seventeen dollars and seventy five cents, for value received, as witness my hand and seal, this 10th day of June, 1836.

OTIS PORTER, (Seal.)”

“ One day after date I promise to pay Seldon Tryon or order five hundred and twenty dollars twenty-one cents, for value received, as witness my hand and seal. Edgecombe ¡county, JNo. Carolina, July 18th, 1836.

OTIS PORTER, (Seal.)”

(i Ninety days after date I promise to pay Seldon Tryon or order five hundred and twenty-five dollars fifty-six cents, for value received. Witness my hand ard seal. Edge-combe county, N. C. OTIS PORTER, (Seal.)”

The plaintiffs then proved that Tryon had, within twelve months from the date of the instrument above referred to, presented these notes to Booth and Porter, and demanded their amount in tin-ware at wholesale prices, and that Booth and Porter refused to comply with the demand. It appeared *284that Otis Porter was insolvent at the time of this demand. Upon this evidence the plaintiffs insisted that Booth and Porter were indebted to Seldon Tryon the amount of the Sa^ nof;es’ an<* that the issue must therefore be found in their favor. The defendants then introduced as a witness Otis Porter, the person named in the instrument given by them, who testified that he met Seldon Tryon in Newbern, where the defendants had a tin factory, and in the presence of James Porter, one of the firm of Booth and Porter, the witness agreed to purchase clocks of Tryon, and James Porter agreed to take Otis Porter’s note for tin-ware at the wholesale prices, and thereupon the instrument above referred to was given by James Porter, in the name of Booth and Porter. The witness testified that he subsequenily purchased of Tryon one hundred clocks, and therefore gave the two smaller of the notes above mentioned; that the clocks were then at Tryon’s store in Edgecombe county, where the witness called occasionally and took them as he wanted them, he being at the time engaged in peddling, until he had received about one half of the *number purchased, and that*the balance of them he never received, as Tryon refused to let him have them; that the two larger notes were given for dry goods, the whole of which he received from Tryon. The defendants then introduced Jonathan Pike, who testified, that on a certain occasion Tryon came to him and offered to sell him the four notes above referred to, that Tryon was then about going on a trip to *the north, and witness told him*he would take the notes, provided Tryon would agree to take them back on his return, if the witness should not like them; that after Tryon returned, he, the witness, took the notes to him, and requested him to take them back according to his promise, but he refused to do so, alleging that the notes were good, and saying that he had then in his possession five or six hundred dollars worth of *property belonging to*Otis Porter. This witness stated further that he renewed his application to Tryon two or three times; and finally sued him, when they settled the difficulty by Tryon taking back the notes and returning the money witness had given for them.

*285Upon this case the defendants objected to the plaintiffs’ recovery upon several grounds; 1st, Because they were not *indebted,*to Tryon, within the meaning of the Act of Assembly, (Rev. St. c. 6,) so as to make them responsible therefor as garnishees: 2dly, Because the instrument upon which they were sought to be made responsible, was not an available contract between them and Tryon, both for want of a consideration and want of mutuality: 3dly, Because the engagement only mentions one note of Otis Porter, and Try-on could not recover upon a demand of four. The court held that the only claim which Tryon could have against Booth and Porter, was for damages in consequence of then-refusal to comply with the contract above spoken of; that such damages were entirely uncertain, and that, as the act required garnishees to state on oath the amount of their indebtedness to the person whose property was attached, it did not embrace cases where the claim was for uncertain damages, the amount of which could not be known to, and could not therefore be stated by, the garnishees. In submission to this opinion the plaintiffs suffered a nonsuit, and appealed to the Supreme Court.

*J. H. Bryan*and *J. W. Bryan*for the plaintiffs.

*Badger*for the defendants.

Ruffin, C. J.

The provisions of our attachment law were, in our opinion, correctly construed by his Honor. That part of it, which was taken from the act of 1777, authorizes a person to whom one removing is indebted, to take out an attachment for his debt or demand,” and to have it levied “ on the estate of such debtor, or in the hands of any person *indebted to,*or having any of the effects of the defendant;” and it provides that where the attachment shall be thus served in the hands of one, supposed “to be indebted to or to have any of the effects” of the party defendant, the garnishee shall be summoned to answer on oath “ *what*he is *indebted to*the defendant, or what effects of his he hath in his hands;” and upon the examination of the garnishee, the court shall “ enter judgment and award execution against the garnishee *286for all *sums of money due*to the defendant from him, or for all effects&c” ^ seems plain upon the act thus far, that the garnishee could only be called on to account for specific estate an(^ e®ects belonging to the debtor and left with the garnishee as the effects of the debtor, or for a *debt*owing from the garnishee and then due to the debtor. The plaintiff in attachment is permitted to use that process to recover his “debt or demand.” But when the subject, on which the process may be served, is spoken of, the phraseology limits its operation yet more narrowly, by requiring it to be served in the hands of one *indebted*to the defendant. And it would seem, indeed, that the indebtedness, at first, must have been in a sum of *money then due;*since *the*act *directs an*immediate judgment and execution, and uses the language “sum of money due.” Under the act of *1777,*we think it clear, that no demand could be attached in the hands of a garnishee but one that was a *debt*in a legal sense, and for which •an action of debt or *indebitatus assumpsit*would lie, or arising upon a liability or negotiable paper, as upon drawing a bill of exchange, or endorsing it on a promisory note, in which case the measure and nature of the party’s liability are as clearly defined and as well ascertained in the law merchant, as those of an obligor in a bond or the maker of a note. That act did not even embrace the cases of acknowledged money debts, not due at the time, or an indebtedness in specific articles; nor provide for a denial by the garnishee of his indebtedness. The attachment could only be served on one “indebted;” and the judgment w.as to be “upon his examination only”- — -which yet more clearly evinces, that it could only apply to such demands, of which the garnishee could conscientiously and with reasonable certainty state the amount on his oath, and not to a case of uncertain damages, of -which there is no standard until assessed by a jury. If the present-case had, therefore, arisen before the act of 1793, it is apparent it could not have been sustained. Here it is impossible to say, that Booth and Porter were *indebted*to Seldon Tryon, the defendant in attachment. For if the contract had been for the sale and purchase of tin-ware at specific prices, to be paid at the time of delivery in money *287or otherwise, Tryon, upon the tender merely oí the payment, could not recover the value of the ware, as a debt; but could ? ' sue only on. the special agreement, and recover, in damages, the difference between the price the purchaser was to give, and the market value, when they ought to have been delivered. It would be the same case here. It is true, Otis Porter is said to have become insolvent, so that it is possible his notes' may be worth nothing. But that is not absolutely certain, as he might from his age, connexions, or enterprise, probably at some day be able to pay the notes or some part oí them. At all events a jury might think so; and they would be bound to make the estimate, since Tryon- *did not transfer*those notes to Booth and Porter so- as to vest them in those parties for what they were worth, be that little or much, but chose to keep them himself. They are, thus, still his, and he would have to account for them before the jury, and could recover only the difference between their value — as it might be made to appear- — and the val ue of the tin-ware. This, therefore, was not a money debt, nor even a debt of any sort: but a liability upon a contract for unliquidated damages.

But it was argued, that the other parts of the act, taken from the act of 1793, c. 389, have provisions which will embrace this case. Upon an attentive consideration of them, however, we think otherwise; and, indeed, those parts of the act but-serve to confirm the previous construction. They first authorize the plaintiff to take issue on the garnishment; but still terms are used equivalent to those in the act of 1777: this section saying, “ when the garnishee shall deny, that he *owes*to, or has property of the defendant in his hands,” then the plaintiff may suggest that the garnishee *“ owes to*&c.” and an issue shall be submitted to a jury. Then follows a provision for other debts besides those in money, namely, where the garnishee “is *indebted*to the defendant by any security or assumption for the delivery of any *specific articles f*in which case the garnishee may either deliver the articles in exoneration of himself,"or according *to*the circumstances, they are to be valued by a jury, and a judgment rendered against the garnishee therefor-*288And, lastly, the case of a debt not due is provided for in these words: “ When a garnishee shall declare that *the money*or *specific article*due by him will become *payable*or *deliverable*at a future day,” then there shall be a conditional *J*judgment in the first instance, and a final one on *scire facias.*As to a money demand subject to attachment, the act of ’93 does not alter that of 1777, except to add one not due to that which was due, and to allow the plaintiff to take an issue, when the garnishee denies the existence ot a debt of either kind. It does, however, enlarge the list of the subjects of attachment, by adding the indebtedness in specific articles. But the nature of the contract, upon which the specific article is deliverable, cannot be misunderstood. It is classed with that, on which the garnishee has bound himself to pay a money debt, and the two are put on the same footing. It can, therefore, only mean a security or assumption for a certain sum of money, payable in specific articles at a particular day, (which are very common contracts, and are called *“*trade notes,”) or absolutely to deliver to another a certain quantity of specific articles, as 100 bushels of corn. On either of those instruments debt would lie at the common law; as in the one case the contract is really for money, to be discharged in specific articles, if the obligor offer them; and in the other, the obligation is complete and the value may be averred and rendered certain on evidence. But upon an ordinary contract of sale, where both *parties are to do*something — the seller engaging to deliver certain things at a day and place named, and the purchaser then to pay for them and receive them; the latter cannot bring debt for the value of the things the other ought to have delivered, but may have his action on the special agreement for damages; and the damages are not necessarily, as has been seen, nor ordinarily, the full value of the articles. There may be many reasons why they should be less; and among them, the fact, here existing, that the party claiming the damages, has kept ,vhat he was to have given to the other party as the price, and, therefore, the difference between the value of that and of the goods is a full indemnity for his loss. Damages arising on such a transaction is not a *debt,*subject to *289attachment under the statute. It would in very many cases, produce renewed litigation between the defendant in attachment and the garnishee, if such demands were liable to be attached. In every case in which there could be a different view of the amount of damages which the garnishee ought to pay, the other party would say he had not admitted on his garnishment as much as he ought, or the jury had not properly assessed them, and he would bring a new action to recover what he claimed as the true amount. We think the intention of the Legislature was only to embrace the cases, in which the demand may be easily ascertained; so that in a subsequent action against the garnishee by his creditor, it may be plainly seen, that it was covered by the garnishment and condemnation in the attachment, and, therefore, may be properly pleaded as a bar to the second action, brought by the creditor himself. But that can never be said of a demand, arising out of the breach of a special agreement, which sounds altogether in damages, about the amount of which persons might differ, and which might, indeed, be varied by circumstances, not known even to the garnishee, but to the other contracting party only.

Per Curiam, Judgment affirmed,