¶1I cannot concur in the- opinion of my associates in this case, although many of the cases cited are in accord with my views. One of the two grounds to which our statute extends the remedy by attachment is to ‘ ‘actions arising on contract for the recovery of money only;” and the affidavit upon which the warrant issues must state, among other things, the amount of the claim, and the grounds upon which it is based. A consideration of the statute, and the cases cited in the majority opinion, convince me that our legislature intended to confine the remedy by attachment, so far as the first ground is concern.6 d, to litigants whose action arose on contract fpr the re*288covery of a sum of money, the exact amount of which is fixed by the terms of the contract, or is capable of being ascertained by computation, or by some other means or measure provided by the terms of the contract, so that a judgment may be rendered without requiring evidence depending upon considerations mt involved in the contract, according to its terms; and I do not regard our statute upon the subject of attachments broad enough in its terms to include cases like the present. Our statute only allows a warrant of attachment inactions arising on contract, for the recovery of money, and in actions for the wrongful conversion of personal property, and in the latter case the value of the property converted is fixed by law as the measure of compensation for the wrong. Section 4894, Comp. Laws, requires the plaintiff in an action arising on contract, for the recovery of money only, to insert in the summons a notice that he will take judgment for the sum specified therein if the defendant fail to answer the complaint within 30 days after the service of the summons; and in case of such failure, if the complaint be verified, a judgment may be obtained by complying with Section 5025, and without the introduction of extrinsic evidence as to the amount due. While the nature of the claim, rather than the form of the summons used, should doubtless control in determining whether the law authorizes an attachment in a case like the one under consideration, it is nevertheless instructive to observe that the framers of our statute have made a distinction between an action on a contract that directly provides for the payment of a specified sum of money and an action upon a contract that provides for the performance of something different, although the aim and object of each action may be to procure a judgment for money. In order to bring this case within the statute, a more liberal construction must be placed upon the phrase “actions arising on contract for the recovery of money only, ’’ than was intended by Section 4894, Comp. Laws, and I cannot believe the framers of a statute creating a harsh remedy in derogation of the common law, by *289which, property may be seized and taken from the possession of the owner by one v hose rights have not been judicially determined, meant to enlarge the meaning of the expression in a statute which should be strictly construed. If a warrant of attachment extends to a case like the present, no reliable rule of practice could be established without extending the remedy to all actions for the recovery of money as damages upon a breach of contract, express or implied, regardless of whether such damages be ascertainable from the terms of the contract, or merely speculative or unliquidated. Let us take, for example, an action for damages on a breach of contract to marry. Although the suit may result in a verdict for the defendant, or in a judgment for nominal damages in favor of the plaintiff, there is no restriction as to the amount for which the suit may be instituted by the party claiming to be injured; and, if the defendant’s property be attached, it can only be discharged by the giving of an undertaking, executed by at least two sureties, to the effect that the sureties will pay the amount of the judgment that may be- recovered in the action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. I am unable to distinguish, in principal, an action for damages on a breach of contract to marry from the case before us. In each the damages, if any, are unliquidated, and neither contract discloses any practical means for determining the amount. In the former case, injury to feelings may be alleged and considered as an element of damages. In the latter case, it is alleged in the affidavit that the plaintiff has suffered damages in the sum of $130 per month from August 1st to November 24th, because the building was not completed at the time agreed upon, and by reason of the unfavorable season of the year for the purpose of renting the building in question. Could anything be more speculative? In my judgment an allegation that a plaintiff in an action on a breach of contract to marry had suffered dam*290ages in the sum of $180 could be made and proved with as much certainty as an allegation that the rental value of a building would have been $180 per month if the season had been favorable. Plaintiff, in his affidavit for an attachment, does not state that he could have rented the building at any price, had the same been completed at the time specified in the contract; and the statement that he has suffered damages in the sum of $494 by reason of not being able to lease the premises on as favorable terms as he could have leased them, had the building been completed and turned over at the time mentioned in the contract, would, if alleged in a complaint, be scarcely sufficient, in my opinion, to state a cause of action, or permit the introduction of evidence relating to damages, because, in the language of the statute, “the grounds upon which the claim is based” would not be sufficiently stated. Again, take for example, a patentee who contracts with another to sell an article which he has invented, together with the exclusive right to manufacture, use and vend the same, and afterwards refuses to complete the transaction, and is sued for damages resulting from a breach of such contract. It is evident that such damages must be merely conjectural and speculative in their nature; and, although the object of the action is to recover money, I am convinced that no attachment should issue, as grievous injustice might result from such a practice.
¶2In Tuttle v. Smith, 14 How. Pr. 395, under a statute the same as ours, the supreme court of New York says: “The phrase ‘for the recovery of money only,’ must be construed to mean the recovery of a definite sum of money, as such, and without calling upon the court to ascertain or adjudge anything but the existence and terms of the contract by which it is due. Whenever the action requires the determination of amounts unliquidated in their nature, requiring other proof, and depending upon other considerations than such as appear in the contract itself, then the action is not for the recovery of money pnly, as money due and payable by the contract on which the *291action arises. It is rather an action to establish and ascertain the plaintiffs right to damages which are to be ■ paid and satisfied in money.” In Barnes v. Buck, 1 Lans. 268, Mr. Justice Lamont says, “No action can properly be said to be, within the meaning of the code, an action arising on contract for the recovery of money only, unless the supposed contract relates to property of some kind — to some pecuniary interest to be affected by its breach, and the violation of which enables the party aggrieved to state to the court, in his complaint such facts as will show damages of a pecuniary nature, and such damages as may be ascertained by some legal rule of indemnification. … I am still of the opinion that a warrant of attachment cannot be issued under the code, except in cases of actions arising on contract, for the recovery of money only, where the breach of the contract can be compensated by some recognized legal rule or rate of damages, so that the sum due canbe made certain either by computation or evidence. In short, the contract must be one of a pecuniary character.” Section 197, Code Civ. Proc. N. C., provides that: 1 ‘At the time of issuing the summons or at any time thereafter, the plaintiff may sue out an attachment against the property of a nonresident defendant in an action arising on contract for the recovery of money only, or in an action for the wrongful conversion of personal property.” In Wilson v. Manfg. Co., 88 N. C. 5, which is cited in the foregoing opinion, and which was an action to recover $1,000 as damages for a breach of a contract, by the terms of which the defendant had agreed to furnish buggks to plaintiff to be sold on commission, the court says: “The law, as regards this matter, has been recently and fully considered in Price v. Cox, 83 N. C. 261 (an action on a breach of contract to marry); and, as it is impossible to distinguish the two cases in principle, the conclusion then reached must control us now. The rule to be deduced from that case is that an attachment may be had in support of any demand arising ex contractu, the amount of which is ascertained, or is susceptible of being ascertained by some standard referrable to *292the contract itself, sufficiently certain to enable the plaintiff to aver it in his affidavit, or a jury to find it; but not so if the action be one for unliquidated damages, in which the contract alleged furnishes no rule for ascertaining them, but leaves the amount to remain altogether uncertain until fixed by the jury, without any definite rule of law to direct them. ” I am familiar with no rule of law or evidence applicable in the case at bar that is not equally applicable to the case from which I quote, and I see nothing in the contract before us that affords a rule of damages more certain or ascertainable. From 1 Am. & Eng. Enc. Law896, I quote the following: ‘‘In those states where the amount of the claim must be averred in the affidavit, in order to complwith the statutory provision, attachment will not lie for unliquidated damages resulting from the breach of a contract, unless there is something in the contract itself which affords a rule by which they may be estimated.” The author cites, among other cases, Carland v. Cunningham, 37 Pa. St. 228, from which I quote the following: “Foreign attachments will lie for such damages resulting from a breach of a contract as may be reduced to a certainty by a definite standard, but not where they are speculative and unliquidated.”
¶3The case under consideration is one for the recovery of damages unliquidated, the amount of which could not be approximately ascertained without the introduction and consideration of evidence, and there is nothing in the contract which affords a rule by which such damages can be ascertained. Our statutes requires the amount of the claim to be stated in the affidavit; and the remedy, in my opinion, is extended only to actions for the wrongful conversion of personal property, and to actions on contract, for the recovery of money, in wThich the amount specified in the affidavit can be ascertained from the terms of the contract, or estimated by the application of some rule or measure of damages deducible from the terms of the contract upon which the action is predicated.
¶4In Minnesota; under a statute which requires a statement *293in the affidavit that the defendant is indebted to the plaintiff in a sum exceeding five dollars, and specifying the amount of such indebtedness, as near as may be, over and above all legal set-offs, that court, in sustaining an attachment in an action to recover damages for certain injuries to property, and delays alleged to have been caused by the unskillfulness and neglect in piloting a certain steamboat from St. Louis to St. Paul, in regard to the. objection that the action was for unliquidated damages, says: “This objection to the allowance of an attachment in this case, would be fatal in most of the states of the union. The proceeding by writ of attachment is, in its nature, anomalous, and, being unknown to the common law, has never been particularly favored by the courts. … No state has gone to such an extent as ours; for, while other states confine the writ to actions for debt, or, at most, to actions ex contractu, Minnesota has overstepped the bounds of precedent, if not, indeed, of prudence, and allows it to issue upon the proper showing in all actions for the recovery of money commenced in the district court, without even making a distinction between actions in tort and those arising out of contract.” Davidson v. Owens, 5 Minn. 69 (Gil. 50). This decision leads me to the conclusion that, under the'liberal construction placed upon the Minnesota statute,' that court would allow an attachment in cases like the one under consideration.
¶5Section 188, c. 8, Laws 1862, provided that: “The plaintiff in a civil action for the recovery of money may, at or after the commencement thereof, have an attachment against the property of the defendant. …” Section 189: £‘An order of attachment shall be made by the clerk of the court, in which the action is brought, in any case mentioned in the preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing: (1) The nature of plaintiff’s claim. (2) That it is just. (3) The amount which the affiant believes the plaintiff ought to recover. (4) * x *” At the time this statute was amended by the substitution of. the *294phrase, ‘ ‘actions arising on contract for the recovery of money only,” for the phrase, “civil actions for the recovery of money” the former expression was used, as it is now used, to designate the actions in which judgment, upon failure to answer, might be obtained without the introduction of extrinsic evidence in proof of the amount due; and it is not unreasonable to presume that the legislature, with an understanding of the force and effect of the phrase, introduced it into Section 4993 of the Compiled Laws for the purpose of diminishing the severity of a harsh and oppressive statute by restricting its application to cases within the accepted meaning of the expression. - And when we observe that the person making the affidavit is now required to state the amount of the claim, instead of the amount which affiant believes the plaintiff ought to recover, the in tention of the framers of the amended statute, in my opinion, is so clearly expressed, in language so transparent, that the interpreter is without employment. Adopting the language and views of Presiding Justice Corson, expressed in the opinion: “This is further evidenced by the third subdivision of Section 4995, which provides for an attachment when it appears ‘that the debt was incurred for property obtained under false pretenses. ’ In this subdivision the term ‘debt’ is evidently used as synonymous with ‘claim’ in the first subdivision.” The word ‘‘claim” is preceded by the definite article “the,’’which further fortifies the position that subdivision 1 of Section 4995 relates to a sum of money reduced, or capable of being reduced, to a certainty, as distinguished from a claim for unliquidated and uncertain damages. The word debt is defined to be: “Whatever one owes; a liquidated demand; a sum of money due by certain and expressed agreement. In its most general sense, that which is due from one person to another, whether money goods or services; that which one is bound to pay or perform for another; a fixed and certain obligation to pay money or some other valuable thing, in the present or in the future.” And. Law Diet. p. 315. So *295far as I am aware, we are called upon for the first time to construe the phrase, ‘ ‘actions arising on contract for the recovery of money only, ” and it is important that a rule of practice be established that will enable the practitioner to say whether an attachment will or will not lie in a given case. In my opinion it does not lie in cases like the present, and the order continuing the attachment in force ought to be reversed.