*794On Rehearing.
MONROE, J.This suit was instituted on June 7, 1906.
The allegations and prayer of the petition which are material to the question at issue are substantially as follows:
Plaintiff alleges that, in December, 1905,. it entered into a contract with defendant, a corporation organized under the law of Wisconsin, whereby (and as subsequently changed) defendant agreed to sell it (plaintiff), say, 5,700,000 feet of lumber, of different kinds, at certain prices; that defendant was to •commence sawing the lumber in December, 1905, and complete it in 10 months from that date; that it has delivered, say, 946,000 feet.
“Represents that said lumber company is about to sell all the property it owns in the state of Louisiana, and permanently remove its «aid business therefrom. Represents that said lumber company is a Wisconsin corporation and has never had its permanent domicile in said state. Represents that there will not be a possibility in the ordinary course of judicial proceeding's to obtain or execute judgment against said lumber company prior to its departure. Represents that, if said contract is not complied with, said Sondheimer & Co. will lose, as profits on said lumber: On said red gum, $21, $10.50, $6, and $6 per 1,000, on the .grades mentioned, respectively; on plain oak, $7 per 1,000; on quarter sawed, $8 per 1,000; •on log run sap gum, $4 per 1,000; and on common sap gum $3 per 1,000; making total loss $32,143.”
Wherefore, plaintiff prays that defendant he cited; that a writ, and an alias writ, of Attachment issue to the sheriffs of Richland •and Franklin parishes, respectively, and that All the property of defendant in those parishes be seized;
“That said lumber company be ordered to comply with the terms of its said contract with plaintiffs within a time to be fixed by your honorable court, and, in default of its doing so, that there be judgment in favor of plaintiffs :and against it in the aforesaid sum of losses named, with 5% from judicial demand, recognizing plaintiffs’ privilege on property that may 'be seized, * * * and that same may be sold under said judgment. Pray that, in so far as plaintiffs’ demand may not be yet mature, it may be allowed to remain on the docket of this honorable court, they reserving the right to amend and ask for final judgment at the proper time.”
The affidavit, signed by the secretary of the plaintiff company, reads:
“That all the facts and allegations contained in the foregoing petition are true and correct; that he has full power and authority to make this affidavit and sign bond for plaintiff corporation; and that the president of said corporation is now absent from the state.”
It will be seen, by comparing the allegations of the petition with the date of its filing, that, when the suit was brought, defendant had still three months of the time allowed within which to deliver the lumber called for by the contract; that plaintiff does not allege that there had been any default when the suit was instituted, or-that any default was intended by, or would, necessarily, result from the alleged contemplated sale by defendant of its property, and that the first prajmr of the petition is “that said lumber company be ordered to comply with the contract, and in default of its so doing, and only in that event, that plaintiff have judgment in the aforesaid sum of losses named,” etc.
If, therefore, the theory upon which the suit was brought and the attachment issued be sound, the same course might have -been pursued within 10 minutes after the signing of the contract. In other words, plaintiff might at once have brought suit and made a seizure upon the identical allegations that are contained in the petition now under consideration, save as to the partial execution of the contract, and, for the omission of the allegations on the subject, the case would have been all the stronger.
Our reconsideration of the matter has led to the conclusion that the law no more authorizes such a course in the one case than in the other. The petition, regarded as a demand for specific performance of the contract, discloses upon its face, not that the demand is premature, but that the conditions *796which might authorize it did not exist when the petition was filed, and, for aught that is alleged, might never exist, and hence, quoad such demand, fails to disclose a cause of action, and disclosing no cause of action as to the judgment prayed for it discloses no cause of action as to the attachment intended to secure the payment of such judgment.
' Beyond that, we are of opinion that the petition discloses no right to the writ of attachment: First, because the right to invoke that remedy, to secure the payment of a debt not yet due, is “confined to eases where, in addition to other requisites, there is an existing debt, although not exigible — debitum in prassenti solvendum in futuro — an existing, absolute, liability to pay, at a future time, and does not embrace cases of prospective and conditional liability.” Cross on Pleading, p. 281; Taylor v. Drane, 13 La. 64; Harrod v. Burgess, 5 Rob. 449; Blanchard et al. v. Grousset, 1 La. Ann. 96; Shannon v. Langhorn, 9 La. Ann. 526; Barriere & Bro. v. Feste, 9 La. Ann. 536; Denegre v. Milne, 10 La. Ann. 324; Nat. Bank v. Moss & Co. et al., 41 La. Ann. 227, 6 South. 25; Claflin & Co. v. Feibelman & Co., 44 La. Ann. 522, 10 South. 862; Bank v. Brewing Ass’n et al., 49 La. Ann. 934, 22 South. 48; Code Prac. art. 242. Second, because an attachment will not lie where the debt is unliquidated, and, from the nature of the claim asserted, it is evident that any amount that may be fixed upon must be conjectural, and hence ought not to serve as the basis of a positive oath. Cross on Pleading, p. 279; Levy v. Levy et al., 11 La. 581; Brinegar v. Griffin, 2 La. Ann. 154; Barrow v. McDonald, 12 La. Ann. 110.
At the time this suit was instituted, and the attachment issued, there was no existing obligation resting upon defendant with respect to the delivery of any lumber to plaintiff. To the contrary, whilst its contract with plaintiff allowed the whole of 10 months, from December 7, 1905, within which to deliver the whole, or any part, of the lumber called for, it had delivered, according to the allegations of the petition, 946,000 feet within the first 7 months, and its liability for damages was prospective, and conditional, upon its nondelivery of the balance, within the remaining 3 months.
As to the damages, they, also, were prospective, and without the gift of prevision it was impossible for plaintiff to state the amount, which depended entirely upon what might be the price of lumber, such as that called for by the contract, at the place where that lumber was to be delivered, or, upon the price at which plaintiff might be able to fill its own contracts, elsewhere, on September 7, 1906, a date then three months in the' future. If the market price should be higher at that date than the contract price, plaintiff would sustain a loss, and if it should be lower, plaintiff would be the gainer by defendant’s failure to make delivery, but when the attachment was issued no one knew, and no one could know, whether the price would be higher or lower, and it is quite certain that at that time plaintiff had sustained no loss for which defendant was liable.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be now affirmed, at the cost of the plaintiff.
PROVOSTY, J., dissents.