| Md. | Jun 5, 1910
On September 23rd, 1909, the appellant, Carroll B. Blick, issued an attachment out of the Baltimore City Court against James M. Cockins, a non-resident of the State of Maryland, to recover the sum of $15,000 claimed to be due him for services rendered by him to said Cockins. This writ was laid in the hands of The Mercantile Trust and Deposit Company of Baltimore, The National Marine Bank, The Drovers and Mechanics' National Bank, The Fidelity and Trust Company, and The Fidelity and Deposit Company of Maryland, as garnishees. The defendant appeared specially in each of these cases for the purpose of moving to quash the writ of attachment, and filed the same motion in each of the garnishee cases, alleging the following reasons therefor:
1. Because there was no sufficient affidavit filed.
2. Because the account filed was insufficient.
3. Because the short note filed was not sufficient. *489
4. Because no writ of summons was issued against the defendant and no copy thereof was set up at the Court House door.
5. Because the alleged indebtedness for which the attachment was issued was for unliquidated damages.
6. Because the claim sued on is not a liquidated claim.
7. For other reasons apparent on the face of the proceedings.
The Court quashed the attachment on the fifth and sixth grounds, and judgment was entered for the garnishee in each case, and the plaintiff has appealed in each case.
The affidavit is in the usual and appropriate form for an attachment against a non-resident debtor, and there was annexed to and filed with the affidavit the following statement of account:
"Statement of Account. James M. Cockins to Carroll B. Blick, Dr. To services rendered in making investments, collecting income, adjusting settlements, releasing mortgages, and acting generally as defendant's agent and superintending his financial affairs in the United States during the years 1900 to 1909, inclusive, at $1,500 a year ____ $15,000."
The short note contained the common counts and the following special count: "This suit is instituted to recover the sum of fifteen thousand dollars due and owing from the defendant to the plaintiff, for services rendered by the plaintiff to the defendant in making investments, collecting incomes, adjusting settlements, releasing mortgages, and acting generally as defendant's agent, and superintending his financial affairs in the United States, during the years 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 1908 and 1909."
It is obvious that the objection that the claim is not liquidated and therefore cannot form the basis of an attachment such as that issued in this case is the principal and fundamental objection.
In Steuart v. Chappell,
In Poe's Practice, sec. 415, that author said: "As the result of the authorities, it may be stated that the claim, to be within the Act, must be one for an ascertained amount of liquidated indebtedness to which a plaintiff can properly swear, and the cause of action which must be filed with the declaration must be one which either on its face shows the liability of the defendant, and the amount of such liability, or which itself furnishes the standard or means of arriving at such liability." The rule stated by Mr. Poe is fully sustained by the Maryland cases. Warwick v. Chase,
In Eastman v. Thayer,
In Steuart v. Chappell, supra, where the claim was "for $1,000 for professional services," in sustaining the action of the lower Court in quashing the attachment, we quoted the singularly clear language of the learned JUDGE DENNIS, in assigning his reasons for holding the claim to be unliquidated, and it is so conclusively applicable to the claim now before us that we reproduce it here. He said: "There is no agreement alleged by which the defendant bound himself to pay any particular sum, and the value of these services is put at what the plaintiff himself assumes them to be worth. This is by no means the real test of their value; the real test is what they are reasonably worth, and that must be determined by a jury,after testimony."
In each case the question is whether the contract itself fixes the amount or furnishes a standard by which the amount may be certainly determined. If it does, the attachment will lie. If it does not, it will not lie.
The cases of Williams v. Jones,
The case of Hough v. Kugler,
We do not understand the appellant's counsel as disputing the general rule deduced from the cases, but they do contend that its application does not defeat their recovery in this case, and in support of this contention they rely chiefly, if not exclusively, upon two cases — Bartlett v. Wilbur,
In Bartlett v. Wilbur, the garnishees appeared and pleadednon-assumpsit on behalf of the defendant in the attachment, andnulla bona on their own behalf. At the trial the garnishees offered a prayer "that the plaintiff is not entitled *493 to recover in this case because no sufficient account was produced before the commissioner at the time of the taking of the affidavit on which the warrant in this case was issued," and this prayer was rejected. The account referred to was as follows:
"The Illuminated Tile Co., to James M. Wilbur, Dr.
To the following materials, labor services, etc., furnished in connection with work done on the New York Post Office from August 11th, 1874, to Feby. 27th, 1875:
Glass $4,087.99 Iron 8,595.35 Rubber 3,476.10 Paints 336.43 Labor 5,861.07
His salary superintending and designing work 12 mos. @ $300 per month 3,600.00 ___________ $25,956.94." In sustaining the ruling on that prayer the Court said: "It is contended that the above account is defective because the precise quantities of glass, rubber, iron, etc., are not itemized. The amount due for each of the items is set forth, and the building for which they were furnished is specifically referred to, and the time during which the appellee was employed in doing and superintending the work is stated. It was necessary of course to prove at the trial, the precise quantity of each of the articles charged in the account, but this it was not necessary to state in the account annexed to the affidavit upon which the attachment was issued. Before proceeding to trial, the guarnishees had the right to demand a bill of particulars, and in a case like the present where the building is referred to, the garnishees were in no manner injured by the failure to state the precise quantityof each of the materials used in its canstruction." This language indicates quite clearly that the objection made *494 to the account had reference only to the items representingmaterial and labor and that no point was made, or considered by the Court in respect to the item of salary, so that the case cannot be regarded as an adjudication of that question.
Moreover, that case is clearly discriminated from the present in the fact that the claim made there is for salary, while the claim here is for "services rendered," bringing the account into close analogy with the account in Steuart v. Chappell,supra. The word "salary" in itself imports a specific contract for a specific sum for a certain period of time. In Words andPhrases, vol. 7, page 6287, it is said: "There are three modes of compensating persons for services, fees, salaries and wages, all different each from the other, and the difference immemorially well understood. Fees are compensation for particular acts as the fees of clerks, sheriffs, lawyers, physicians, etc. Wages are compensation for services by the day or week, as of laborers, etc. Salaries are per annum
compensation to men in official, and some other stations.Cowdin v. Huff,
We think there would be a clear distinction between the case before us, and the case of Bartlett v. Wilbur, supra, even if it should be conceded the Court had the point before it and intended to be understood as passing upon it. The Texas case relied on, Evans v. Brennan, 46 S.W. 80, is out of harmony with the prevailing doctrine, as indicated in the cases we have cited from other jurisdictions, and in conflict with our own decisions to which we must adhere. As the attachment was properly quashed upon the fifth and sixth grounds of objection, we do not deem it necessary to consider the other grounds of objection argued in the brief of the appellees.
Judgments affirmed with costs to the appellees above andbelow. *495