This is a case originating under the attachment act of Maryland of 1795, (ch. 56.) and brought to this Court upon a writ of error to the Circuit Court of the District of Columbia, for Washington county. The suit was brought by Orr, the defendant in error, on what is technically called a short note, expressing the true cause of action, as follows:
Howes Goldsborough, Esq.
To Benjamin G. Orr, Dr.
four on P. street, south
between 4 1-2 street west and
lots adjoining to the west, 4,500
adjoining the above house on
the east side, and lot No.
and 10, and part of 11,
containing--square feet,
$2,919
lots under both contracts...........10,906
lumber on account of Orr, to the amount
stated in the account D (including all the credits
stated in the account A) ...........$7986
Leaving a balance to be delivered on account of the houses
and lots sold and conveyed by Orr to Goldsborough
for which judgment is now recovered, with interest 2919
to make the whole amount in lumber to be taken
He gave the note mentioned, for.......$3954
the house and lots sold by that contract..6406
Upon the argument of the cause in this Court, the principal question has been, whether the failure of Orr to pay the note of 3,594 dollars, constitutes a good defence to this suit. That there is a alance due to Orr of 2,919 dollars and 89 cents, for property actually conveyed by him to Goldsborough, under the agreements stated in the case, is most manifest; and the only point open for consideration is, whether the payment of the note is a condition precedent to the recovery of that balance. This must be decided by the terms of the written agreement B.; for if the contract on one side be not dependent upon the performance of the contract on the other, or if they be not mutual and concurrent contracts, to be performed at the same time, there can be no doubt, that the defence is unsupported. And, upon full consideration, we are all of opinion, that the contracts are not dependent or concurrent, by the true and necessary interpretation of that agreement. The agreement on the part of Orr was literally complied with. The titles to the property sold were duly made, the note was duly given, and Orr was at all times ready to receive the lumber according to his rights under the agreement. It is observable, that one moiety of the lumber was deliverable in 1818; and as to this it is clear, that the payment of the note could not be a condition precedent. The other moiety was deliverable in the year 1819, as it was wanted by Orr, and of course he might elect to demand the whole before, as well as after the note became due, at his pleasure. If this be so, it could not be within the contemplation of the parties, that the delivery of the lumber should be dependent upon the payment of the note, for the whole might be rightfully demanded before it became due. Nothing is better settled, both upon reason and authority, than the principle, that where the acts stipulated to be done, are to be done at different times, the stipulations are to be construed as independent of each other. The parol enlargement of the time of payment of the note, cannot be admitted to change the nature of the original agreement; nor is there any pretence to say, that there was any waiver of the original agreement, even supposing that, in point of law, such a waiver could be insisted upon, in a case circumstanced like the present. For the parties recognised the existence of that agreement, and lumber continued to be delivered under it as Orr required. If, indeed, any waiver were to be implied, it would be a waiver by Goldsborough of a payment of the note as a condition precedent to the delivery of the lumber. But the parol contract does not, in any degree, vary the legal rights or obligations of the parties. The Court below was, therefore, right in refusing the instruction prayed for by the counsel for the defendant.
After the argument, some difficulties occurred as to the nature and form of the proceedings under this attachment act; but upon hearing the parties again, our doubts are entirely removed. One of the doubts was, whether, in cases of attachment, if the defendant appeared and dissolved the attachment, there ought not to be a declaration and subsequent pleadings, according to the course in ordinary actions. Upon the terms of the acts respecting attachments, we should have inclined to the opinion, that such a declaration, and such pleadings, were necessary. But the practice is shown to have been otherwise, and that practice has been solemnly adjudged by the Court of Appeals of Maryland to be in conformity to law. #fnc [1] We have no disposition to disturb this construction.
Another doubt was, whether an attachment will lie in a case ex contractu, for unliquidated damages for non-delivery of goods. The act of 1795 gives the remedy upon the creditors making oath, &c., that the debtor is bona fide indebted to him in a sum certain over all discounts, 'and at the same time producing the bond or bonds, bill or bills, protested bill or bills of exchange, promissory
Some objections were taken by the defendant to the preliminary proceedings in this suit; but it is unnecessary to consider them, because, whatever might have been their original defects, they are waived by going to trial upon the merits. The judgment of the Circuit Court is, therefore, affirmed, with costs. #fne [2]
Samuel Smith and others v. Robert Gilmor and others, Garnishees of Wilhelm and Jan Willink.
Appeal from Baltimore County Court. In this case, an attachment issued on the 2d of February, 1805, in the names of the present appellants, against the lands, tenements, goods, chattels, and credits of Wilhelm and Jan Willink, under, and in virtue of a warrant from a Justice of the Peace of Baltimore county, directed to the clerk of the County Court of that county, accompanied by an affidavit and account, pursuant to the directions of the act of assembly of 1795, ch. 56. At the same time the plaintiffs prosecuted a writ of capias ad respondendum against the defendants, and filed a short note, stating, that the suit was brought to recover the sum of 14,094 dollars and 84 cents, due from the defendants to the plaintiffs, on account, and a copy thereof was sent with the said writ, endorsed, 'to be set up at the Court house door by the Sheriff.' The attachment was returned by the Sheriff, laid in the hands of Robert Gilmor and others, (the appellees,) and the writ of capias ad respondendum was returned tarde. The garnishees being called, appeared; and by their counsel pleaded, that Wilhelm and Jan Willink did not assume, &c., and that at the time of laying the attachment, &c. they had no goods, &c. of the said Willinks in their hands. The general replication was put in to the last plea, and issues were joined. Verdicts for the plaintiffs for 12,775 dollars current money, damages. Motion by the garnishees in arrest of judgment, and the reason assigned was because no declaration had been filed in the case. The County Court sustained the motion, and arrested the judgment. The plaintiffs appealed to this Court.
The case was argued in this Court by Winder for the appellants, and by Martin and Harper for the appellees.
The Court of Appeals reversed the judgment of the County Court, and rendered judgment of condemnation on the verdicts for the plaintiffs for 12,775 dollars current money, damages, together with 1,975 dollars and 93 cents, current money, additional damages, and costs.