Opinion
42470.
ARGUED JANUARY 9, 1967.
DECIDED JANUARY 24, 1967.
Attachment. Cobb Civil and Criminal Court. Before Judge Ravan.
Gettle Jones, Sherman C. Fraser, Jr., for appellant.
Gambrell Mobley, Albert Sidney Johnson, for appellee.
Attachment will lie for an unliquidated money demand.
ARGUED JANUARY 9, 1967 — DECIDED JANUARY 24, 1967.
The plaintiff, Charles B. Willingham, doing business as Willingham Machinery Company, sold the defendant, Tennessee-Virginia Construction Company, a described Allis Chalmers front end loader for a consideration of cash plus a caterpillar tractor and a "lot" of shop tools valued at $950. After entering into the contract and after the front end loader was delivered to the defendant, the defendant refused to deliver the "lot" of shop tools to the plaintiff and damaged the caterpillar tractor before it was delivered to the plaintiff. The plaintiff thereafter filed an attachment in which it was shown that the defendant was a nonresident of Georgia. A levy was made on the described machinery as the property of the defendant and thereafter a declaration in attachment was filed showing the above facts and seeking to recover $950 as the value of the "lot" of shop tools, $1,440 for damages to the traded-in tractor, and $500 as "cover" for the plaintiff's expense, necessarily incurred, as the result of the defendant's failure and refusal to deliver the shop tools. Thereafter, among other defensive pleadings, the defendant demurred generally to the plaintiff's petition. The demurrers were overruled and the defendant appealed.
The sole contention of the defendant, appellant here, is that attachment will not lie to recover unliquidated damages or where the contract breached requires property other than money to be delivered to the plaintiff.
In support of the contention the defendant cites Mills v. Findlay, 14 Ga. 230, and Monroe v. Bishop, 29 Ga. 159. The Mills case, decided in 1853, held that attachment would not lie to recover unliquidated damages. Thereafter, in 1857, the General Assembly adopted an Act, now codified as Code § 8-102, which provides: "In all cases of money demands, whether arising ex contractu or ex delicto, the plaintiff shall have the right to sue out the attachment when the defendant shall have placed himself in such situation as will authorize a plaintiff to sue out attachment." See Code § 8-101 (grounds of attachment). In construing the statute adopted after the decision in the Mills case the Supreme Court held that attachment would lie for unliquidated money demands. Morton v. Pearman, 28 Ga. 323. The decision in the Monroe case, supra, relied on by the defendant involved an attachment sued out at a time when no debt was presently due and on an obligation which could be satisfied in futuro by other than the payment of money, to wit: notes.
In the case sub judice the plaintiff seeks the issuance of attachment based on in praesenti money demands, although concededly unliquidated. Hence, the declaration was not subject to the defendant's general demurrers for any reason assigned.
Judgment affirmed. Frankum, P. J., and Deen, J., concur.