93 N. J. L. Scheible v. Hightstown. discussing the difficulty of carrying out the law, the fault is with the law and not with its construction. The absent voter was entitled either to a proper form of ballot and enclosing envelopes, or a copy of the law, or directions how to prepare and cast his vote, and without either "he had no notice such as the law intends he shall have, of the character of the ballot he was entitled to prepare and use * * The fact that the referendum was voted on, on the day of the general election, and at that election does not, in our judgment, affect the force of this reasoning. It was said, in Brown v. Street Lighting District, 70 N. J. L. 762, that where the time, place and purpose of an election are fixed by public law, all voters must take notice thereof, &c. The learned justice who wrote that opinion did not have before him the Soldiers' Vote act with the express requirements to which we have just called attention; and, moreover, it is to be observed that his language does not cover this case, for the time of the election on the local option is not fixed by public law in the sense he intended but by the joint action of the legislature and certain petitioners. A parallel case would be one where the legislature has provided that on the day of general election the several municipalities through their respective electorates shall vote on prohibition; in other words, the time, place and purpose of the election should appear on the face of the statute without recourse to any aliunde information. We think the correct reasoning is found in that line of cases from other jurisdictions cited in prosecutor's brief, that when the question of an election vel non on a certain subject depends on the action not only of the legislature but also of some other agency, such election, whenever held, is a special one, and the doctrine of the Brown case does not apply. 22 L. R. A. 483. The legislature might as well have designated some other day, as the second Tuesday of December, for the referendum election in cases where the petition is signed by less than thirty per cent. of the voters. It seems quite clear that such an election would be special. The fact that the day of general election is designated was no doubt due to considerations of expense and convenience; whether Scheible v. Hightstown. 93 N. J. L. there should be a vote at all on the day designated depends, as we have said, on the action of citizens of which other citizens are not bound to take notice, as well as of the lawmaking body. Concluding, then, as we do, that the requirements of the Soldiers' Vote law apply substantially to the same extent to a vote on local option taken at a general election, as to a special election thereon, we take up the claim that there was no substantial compliance with them, and find it well founded. It appears that ballots were not mailed to the several voters nor were copies of the law nor voting instructions; as we understand the facts, the secretary of state sent special agents to some of the camps, and a bundle of ballots and other papers. by mail to the commanding officers of other camps, hoping that the ballots in some way would reach those for whom they were intended; that the plan was not authorized by the act is perfectly plain; that it failed of its purpose is indicated by the fact that a comparatively insignificant number of ballots came back. No doubt the secretary of state did the best he could, but this was not enough. Evidently, he could not obtain the individual names and addresses from an overburdened war department and in the face of rules denying information. But the names were no doubt ascertainable in the borough; most of them, at all events; and the military addresses, in care of the respective organizations, were, or should have been, procurable. If the referendum was of paramount importance, it justified a special effort to get the ballots and voting information to the soldiers and sailors: and no special effort of the kind intimated seems to have been made. The counter argument that the general election for local officers and members of the legislature must also be considered vitiated does not appeal to us. The distinction, and the reason for it, are forcibly pointed out in the deliverance of the Chief Justice sitting in the Montclair case. His remarks are too long to quote here, but the point is that the overturning of a governmental election as distinguished from what he significantly calls a sociological one, is a matter to which other considerations of grave public consequence apply, particularly the importance of having officers to carry on public affairs. The special question now under consideration has no such features. Whether the saloons shall close to-day, or await another election at which all shall have their chance to vote, is a matter concerning the general public welfare; like the abolition of a smoke nuisance, for example, but not striking at the administration of government in any direct way, as in the other case. On the whole, our conclusion is that the referendum was vitiated by the totally inadequate provision for securing the absentee vote. Laches is urged. The election occurred early in November. The writ was allowed in January. If prosecutor had applied immediately after election, allocatur might well have been denied on the ground that the soldier vote might turn the result the other way. The law allowed thirty days to count that vote; so, the delay was something over a month. We are unwilling to say that prosecutor should be barred on this account. We think, however, that no costs should be allowed to either party. MAX SHER, RESPONDENT, v. RAYMOND L. CHURCH ET AL., TRADING, &c., PROSECUTORS. Submitted March 20, 1919-Decided June 3, 1919. Attachment will not lie for unliquidated damages claimed by reason of defendants supplying goods of a quality inferior to that agreed upon. On certiorari. Before Justices PARKER and MINTURN. For the prosecutors, Burgess A. Cruden. For the respondent, Alerander Seelow. Sher v. Church. The opinion of the court was delivered by 93 N. J. L. PARKER, J. The court below discharged a rule to show cause why the writ of attachment, which is the foundation of the case, should not be quashed, and this is the basis of the present review. The affidavit for the writ alleged that prosecutors were nonresident, and that they were indebted to plaintiff in $500, as nearly as he could ascertain; and went on to specify that this sum was due "for failure to deliver goods purchased from them and for breach of contract to deliver goods in accordance with agreement, and for other losses sustained by reason of their failure to ship hay in accordance with their agreements." The state of demand counted on a sale of hay which prose.cutors "agreed to deliver in good condition, but the said hay was delivered by defendants in poor condition. Said defendants also sold to plaintiff another car of hay, but the hay received was not the same quality as ordered." Then follows a bill of particulars giving car numbers and amounts claimed as "damages" on each car. Prosecutors make the point, and we think it well taken, that the claim is manifestly not for any debt, but for unliquidated damages. If this be so, plainly, attachment will not lie. Jeffery v. Wooley, 10 N. J. L. 123; Heckscher v. Trotter, 48 Id. 419. It is said that the right to attach is supported by the more recent cases of Sullivan v. Moffat, 68 N. J. L. 211, and Laura v. Puncerelli, 91 Id. 38; affirmed without opinion, 92 Id. 518; but neither case is in point. In Sullivan . Moffat the court dealt with the state of facts set up on the plaintiff's affidavit, and which it intimated he might not be able to prove at the trial. It pointed out that there was a specific promise to pay a certain sum, from which plaintiff allowed certain deductions for cash, “and for materials to be furnished and labor to be performed at the expense of the defendants, the cost of which appears on the face of the account to be certain, and, presumably, can be ascertained by some definite standard." In Laura v. Puncerelli the writ was supported (apart from Fircumstances indicating a general appearance) on the theory, which there was evidence to sustain, that, although at first the claim was purely for unliquidated damages in tort, it was turned into a contract obligation by defendant agreeing for lawful consideration to pay the cost of making the damage good. In proceedings under the Attachment act (Comp. Stat., p. 132), or cognate legislation, such as sections 69 et seq. of the District Court act (Comp. Stat., p. 1977), the rule in Jeffery v. Wooley, supra, is still in force. In that case the suit was for a breach of covenant, and it not appearing that the covenant was to pay a sum of money or was otherwise liquidated, the writ was quashed. So, where the claim was for a penalty for breach of covenant, the writ was quashed (Brown ads. Hoy, 16 N. J. L. 158), and the same result was reached in a case of doubt whether the clause in the contract provided for a penalty or for liquidated damages (Cheddick v. Marsh, 21 Id. 463), though, apparently, attachment will lie on a quantum meruit for work and labor. Boyd v. King, 36 Id. 134, 138. The case at bar rests on principles similar to those controlling the covenant cases cited above. According to plaintiff's claim, the prosecutors agreed to furnish hay of a certain. quality; they furnished hay of inferior quality, thus violating their agreement; and plaintiff's below were damaged. How much were they damaged? Who is to decide the amount? They have not agreed to pay any sum certain as damages, or any damages at all; they have not admitted the existence of damages. Manifestly, the questions whether there is damage, and, if so, its amount, are for settlement by a jury, or by a court if jury be waived; and this is dispositive of the case. The judgment brought up is reversed and the writ of attachment quashed, with costs. |