29 Md. 162 | Md. | 1868
delivered the opinion of the court.
At the argument of this cause, after hearing the counsel for the appellant, the court declined to hear the appellee’s counsel, and announced as the opinion of a majority of the court, that the motion to dismiss the appeal ought to prevail, and passed an order accordingly. The whole court was also of opinion that the account filed in the cause, upon which the suit was brought, was not a debt within the purview of Art. 4, secs. 166-169 of the Code of Public Local Laws of the City of Baltimore. We now proceed to state more fully the grounds of that opinion. The judgment rendered by the court below was a mere interlocutory judgment, leaving the case upon the docket for final trial and adjudication as it stood before the judgment
It is well settled that no appeal can be prosecuted in this court, until a final decision has been had in the court below, which concludes the rights of the parties to the action; the decision in this case certainly did not do so, for the case still stands for trial on the docket of the court below.
In regard to the second question, we regard the plaintiffs' claim as unliquidated damages, and not embraced within the meaning of the sections of the Code referred to. Sec. 168, we think, makes it clear that the three preceding sections, referred to on the plaintiffs’ brief, relate only to an ascertained amount of liquidated indebtedness, which the plaintiff can properl}'- and safely swear the defendant owes *to him. Is this such a claim? Is the claim in this case an ascertained amount of liquidated indebtedness to which a plaintiff can properly swear ? We think it is not. The rule upon the subject of liquidated and unliquidated damages we take to be, that where a precise sum for damages is not agreed upon, and is not of the essence of the contract between the parties, the quantum of damages isunliquidated, and it is for a jury to assess them; but where the precise sum has been fixed and agreed upon by the parties, that sum is the ascertained and liquidated damages, and the jury must assess that amount, no more and no less. The case before us, we think, is embraced in the first branch of the rule, the case of the sale of flour, Wilson v. Wilson, 8 Gill, 192, is within the second branch. In the case before us, there were no damages agreed upon between the parties, there was not even a penalty named, and the only penalty for a breach of the contract, or for negligence in its performance, was what the law would raise and a jury assess according to the circumstances of the case. In Wilson v. Wilson, supra, the amount of the damages was fixed by the contract; or what was the same thing the contract furnished a standard by which they could be certainly ascertained. The contract was, that Tinsley & Co. were to guarantee the inspection of the flour which they were to deliver, and if it would not pass superfine, then Wilson was to furnish them with the inspector’s certificate of the flour as passed by him, and Tinsley & Co. were to make such deductions as
It was shown that the flour did not pass superfine, and that the difference in the value of flour, according to the custom of the place where it was inspected, was fifty cents per barrel. The court, in speaking of the damages in that case, say : “They were as easily ascertained as the value of goods sold where no price was fixed as value. The standard was so clearly ascertained by the contract itself, as to enable the ^plaintiff to aver it in his affidavit/' There is, we think, a broad distinction between Wilson v. Wilson, and the case before us, and so far from sustaining the proposition of the plaintiff, as an authority against him. For, when the court say, “the standard was so clearly ascertained by the contract, as to enable the plaintiff to aver it in his affidavit, the converse must be true, and if it had not been so clearly ascertained in the contract itself, he would not have averred it in his affidavit; in other words, had it not been of the essence of the contract, the damages would have been unliquidated, and not an account proper to be sworn to. Wilson could have charged no greater sum than fifty cents per barrel; that was the amount of damages agreed and fixed upon so soon as the inspector should certify. Tinsley & Co. could claim to pay no less, and if a jury had been called, they could have assessed neither more nor less. The mode of ascertaining the amount was just as certainly fixed by the contract, so that there could be no difficulty in ascertaining the amount and reducing it to a certain sum by force of the contract. There could have been no circumstances adduced to alter the amount; the damages were, therefore, liquidated and ascertained, and the plaintiff might well swear to it in his account after he had proved the contract.
!S[ot so in this case; no stipulation was made by the defendants that they, in the event of such and such a failure, would pay so much, to be ascertained from fixed data by some particular persons, the law fixed the contract between these parties. The defendants were bailees, not common carriers, and not to be held to the rigid and strict accountability of common carriers; they might, therefore, have had many defensés to offer in proof, either to exonerate them from liability altogether, or to mitigate the damages ; surely damages, which may be gotten rid of
It is proper that this case should be brought up in the court below by regular continuances.
Appeal dismissed.
