I am not in accord with the opinion of Mr. Justice NORTH. He bases decision upon our ruling in Old Ben Coal Co. v.Universal Coal Co., 248 Mich. 486. In that case plaintiff agreed to buy 100 cars of coal at $1.40 per ton and defendant promised to deliver them. After four cars had been delivered, defendant breached the contract. We there said (p. 495):
"In cases in contract for breach of contract, where the amount of damages may be computed definitely *Page 567 by a standard referable to the contract and stated in a given amount, garnishment is permitted under the reasoning of the court in the cases last above cited. In the case at bar the damages are stated in a given amount in dollars and cents, they are ascertainable by the `standard referable to the contract' — the price of a ton of coal."
In the coal case the price per ton for coal was specific and the number of cars was specific, while in the case at bar there is no limit to the quantity of goods plaintiff may sell to the companies under contract nor have those companies agreed to take any definite amounts. It is also to be noted that there is no definite time limit to those contracts.
I am of the opinion that the rule announced in Kristoffy v.Iwanski, 255 Mich. 25, is the proper rule to follow in the case at bar. In that case plaintiff was induced to part with real estate of a claimed value of $5,000 and $385 in cash. We there said:
"A promise or contract is implied by law upon waiver of tort at common law and equally so upon waiver of tort by statute. The form of assumpsit declaration used is not important, respecting garnishment. It is important that the action shall arise upon contract. The action before us is one arising upon a contract implied by law.
"Nearly all the indebtedness (it is urged in its entirety), here claimed, cannot be stated on oath and in a given amount within the meaning of the statute, for the value of the real property conveyed cannot be determined `by a standard referable to the contract itself,' but must rest largely in opinion.Roelofson v. Hatch, 3 Mich. 277; Old Ben Coal Co. v.Universal Coal Co., 248 Mich. 486; Albee v. Schmied,250 Mich. 270; 28 C.J. p. 29."
If in the Kristoffy Case the value of the real estate could not be determined "by a standard referable *Page 568 to the contract itself," then in the case at bar commissions based on a fluctuating sales price and for an indefinite period are too speculative to base garnishment proceedings upon.
The motion to dismiss the garnishment should have been granted. Defendant should recover costs.
CHANDLER, J., did not sit.