57 A. 17 | Md. | 1904
This case originated in a suit brought in the Baltimore City Court, March 3rd, 1902, by the appellants to recover from Thomas C. Chappell for professional services rendered to him. After two returns of non est therein, the plaintiffs on February 28th, 1903, filed a petition under sec. 24 of Art. 9 of the Code of Public General Laws, verified by their affidavit, and on the same day the Court ordered an attachment to issue, which was laid in the hands of the appellee as garnishee of Thomas C. Chappell. Accompanying the petition for the writ of attachment was the following paper, designated in the record, "Account and cause of action sued on:"
Baltimore, November 1st, 1899. Thomas C. Chappell, To Steuart Steuart, Dr.
To professional services rendered from April to October, 1899, both inclusive, to retainer ................................ $250 To fee for additional services rendered ...................... 1000 $1250 ____ April 10th, 1899, by check ................................... 250 _____ Balance due .............................................. $1000 There was also filed with said account, a statement of the numerous services rendered during a protracted litigation, and a detailed enumeration of the various matters considered in the rendering of these services, showing twenty-four separate and distinct suits. The short note filed with the petition contained *529 the common counts, and one claiming $1,000 due and owing for professional services as attorneys at law. The record also contains the narr. filed in the original proceeding and the account filed therewith, the latter being as follows:
Baltimore, Md., January 31, 1900.
Mr. Thomas C. Chappell, To Arthur Steuart and James L. Steuart, Partners, practicing law as Steuart Steuart, Dr.
Professional services rendered in Baltimore, New York and elsewhere from March, 1899, to October, 1899 .............................. $1000 The attachment was returnable on the 2nd Monday in March, and was laid in the garnishees hands March 6th, 1903. On March 31st, 1903, she appeared by attorney and moved to quash the attachment. 1. Because of irregularities appearing upon the face of the proceedings. 2. Because of an alleged variance between the account filed with the narr. in the original case, and that filed as a voucher in the attachment proceedings. 3. Because the claim sued on is not a liquidated claim as required to be in such a proceeding as this.
The Court sustained the third ground and quashed the attachment, and from that order this appeal is taken, and the appellee has moved to dismiss the appeal.
It is settled in this State that no appeal will lie from an order refusing to quash an attachment, for the reason that such order is an interlocutory ruling merely. 2 Poe's Practice, sec. 538; Baldwin v. Wright, 3 Gill, 246, (case 9 of that group of appeals). Mitchell v. Chestnut,
A suggestion was made at the argument that an attachment cannot be had after two non ests, if the defendant be a non-resident, as it is said he is here, but the right was sustained in Barney
v. Patterson, 6 H. J. 200, and in Risewick v. Davis,
The first ground for the motion to quash appears to be that the voucher on account upon which the attachment is based is too vague to be the foundation of any attachment proceeding, and that it should set out in detail the services rendered in each particular case, and the sum claimed as compensation in each, but we do not agree with this contention. It has been held where an indebtedness is for money loaned at different times, that it is not necessary in order to comply with the provisions of the attachment law, that the accounts should specify the dates and amounts of the several loans (Cox v. Waters,
Upon this point, Mr. Rood in his recent work on Garnishment,
sec. 148, thus states the law: "Demands, the amount of which cannot be ascertained by computation, but only by the verdict of a jury, or in other similar manner, are not included in the terms of statutes declaring what property and debts may be attached by garnishment;" and Mr. Poe, in his work on Practice, sec. 415, says, "As the result of the authorities, it may be stated that the claim, in order to be within the Act, must be one for an ascertained amount of liquidated indebtedness to which a plaintiff can safely and 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 theamount of such liability, or which itself furnishes the standard or means of arriving at such liability." Mr. Poe is speaking here of the practice under the special Rule Day Act, but he had just said in sec. 414, "It is to be observed that the requirements of the Act, in respect of the cause of action are identical with those of the attachment law against non-residents, and the decisions upon the latter are therefore applicable to the former," and he is supported in this by the decision in State,use of Bouldin v. Steibel,
Before the Act of 1888, ch. 507, now sec. 43 of Art. 9 of the Code, unliquidated damages could not be recovered by attachment in this State, except where the action was for illegal arrest, false imprisonment, or violations of certain articles of the Bill of Rights, and the provisions of the Code relating to the writ ofhabeas corpus, but that Act now allows attachments in cases arising ex contractu where the damages are unliquidated, and in actions for wrongs independent of contract, but requires a declaration setting out in detail, the breach of contract or tort complained of, verified by affidavit, and a bond similar to that required in attachments on original process for fraud. In the absence of these essentials, the attachment *532
could not be sustained under that Act, and it is apparent that the proceedings were instituted under the theory that the damages claimed are recoverable under the general attachment law applicable to non-residents and absconding debtors, although the claim is upon a quantum meruit, in other words, that the damages are liquidated. The rule stated by Mr. Poe for determining whether damages are liquidated or unliquidated, is sustained by many cases in Maryland and elsewhere, and among these is the leading case of Fisher v. Consequa, 2 Wn. C.C. Rep. 382, where the process of attachment was said to be applicable only to "a demand arising ex contractu, the amount of which was ascertained, or which was susceptible of ascertainment by some standard referrable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver it or a jury to find it," and that such a demand "might be the foundation of a proceeding by way of foreign attachment, without reference to the form of action, or the technical definition ofdebt` the expression used in the law." This rule has nowhere been more clearly expressed than in Smithson Owens v. UnitedStates Telegraph Co.,
As was said by the Judge at the trial of the case now before us, "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 they are 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 one of the earlier American cases where the question was one of set-off under a statute excluding unliquidated damages, *533 (Butts v Collins, 13 Wend. 139), it was said "unliquidated damages are such as rest in opinion only, and must be ascertained by a jury. They are damages which cannot be ascertained by computation or calculation; as for instance, damages for not using a farm in a workmanlike manner; for not skillfully amputating a limb; for unskillfully working raw material into a finished fabric, and other cases of a like character where are no data given for computation, or any mode of calculation."
So in Hepburn v. Hoag, 6 Cowen, 613, damages for breach of covenant to provide proper medicine and medical attendance, were held unliquidated; and in Eastman v. Thayer,
In Capes v. Burgess,
The case of Calvert v. Coxe, 1 Gill, 95, relating to the compensation of an attorney for professional services sought to be recovered under a quantum meruit seems to be suggestive of the view that would have been taken by the Court if that proceeding had been an attachment. In that case, the majority of the Court, Judges ARCHER, CHAMBERS and SPENCE, held that it was not competent for the plaintiff to offer evidence of what was paid to, or demanded by, any attorney in particular for like services, and that he could only offer evidence of the usual and customary compensation for services of the like kind, saying, "We cannot judicially know the standing of any one member of the bar, or the circumstances under which he was paid, or demanded a given sum for his services." JUDGE DORSEY dissented from this ruling and argued that a witness who should undertake to testify what was the usual and ordinary compensation for such services, could only be qualified so to testify from his knowledge of what was so paid by others for like services, and that it was therefore competent to prove in the first place what had been paid to other counsel in similar cases. But whatever may be thought of these divergent views, neither affords any certain measure or standard for ascertaining the value of the services without the aid of inferences from extrinsic facts and circumstances, and such evidence would not bring this case within the rule herein stated. The case of Dirickson v. Showell,
Reference to that case will show that the contract there furnished a plain standard for ascertaining the indebtedness without resort to extrinsic circumstances.
We can discover no error in the ruling of the learned Judge below, and the judgment quashing the attachment will be affirmed.
Judgment affirmed with costs above and below.
(Decided January 20th, 1904.)