Elwell & Co. v. Acme Portland Cement Co.

Although the defendant has long delayed its motion to vacate or modify the attachment, it does not appear that plain - tiff has been prejudiced thereby. It is not the custom on' motions like the present to examine a complaint with the same critical care that is required when its sufficiency is called in question upon a trial, or by a demurrer or a motion to dismiss. We do not, therefore, pass upon defendant’s objection that the complaint states no cause of action. What plaintiff apparently seeks to recover is the damages which it claims to have suffered because defendant, by its acts, has prevented the *123carrying out of a contract between plaintiff and defendant, and thus has caused plaintiff to incur expense, without permitting it to earn the profits which might have been earned if the contract had been carried out. These damages are unliquidated, at least so far as probable profits are concerned, and the affidavit upon which the attachment was granted does not state facts from which the court could determine whether any profits would have been earned, and, if so, how much they would have amounted to. The only positive allegations of damages are that plaintiff has already expended $12,250 on account of the contract, and has incurred obligations to others amounting to $21,000. These sums amount to $33,250, which is all that the attachment should have been issued for.

The order denying the motion to vacate the attachment and for further relief must, therefore, be reversed, and the motion granted to the extent of reducing the amount to $33,250, without costs in this court to either party.

Ingraham, P. J., Clarke and Miller, JJ., concurred; Laughlin, J., concurred in result.

Order reversed and motion granted to the extent stated in opinion, without costs. Order to be settled on notice.