Alexander v. Pollock & Co.

72 Ala. 137 | Ala. | 1882

SOMEBYILLE, J.

It has long been, and is now, the settled doctrine in this State, that only such moneyed demands can be subjected to garnishment, as the defendant can in his own name ■recover in an action of debt, or indebitatus assunypsit.—Jones’ Adm’r v. Crews, 64 Ala. 368; 1 Brick. Dig. p. 175, § 314.

It is obviously true, that an attaching or garnishing creditor can not, through the levy of his process, acquire any higher or better rights to the debt or assets attached, than the' defendant had when the garnishment or attachment, was served; unless he can show some fraud or collusion, by which his just and legal rights are prejudiced. — Drake on Attach. § 223.

The application of these principles proves fatal to the appellant’s right of recovery. The contract between Pollock & Co., the garnishees, and the defendant, McGetrick, was, that - the defendant would serve them as a salesman, in their business, upon the following terms and conditions: They were to pay him twenty-five dollars per week in adnxmce, so long as he might continue in their employment. Each party had the right to terminate the contract at any time, the garnishees reserving the right to discharge McGetrick within their discretion, with or without cause, and he having the like privilege of abandoning their employment whenever he saw fit. It is shown that he continued in the employment of the garnishees, under this arrangement, for more than a year; during which period of time they punctually paid him his weekly wages of twenty-five dollars in advance ; and they answered that they owed nothing at the time of'the trial. The court discharged the garnishees, on motion; and it is insisted that this was error.

The test of the correctness of the ruling is simple. Could the defendant, under the contract, have recovered anything from his employers, Pollock & Co., at anj' time within the period covered by the garnishment proceedings? Could he have ever successfully sued Pollock & Co. in debt, or indebitatus assumpsit f It is manifest that he could not. The contract was for no definite time. Either party had the right to annul or abandon it at any time. The contract price of each week’s labor was paid in advance. Suppose the defendant had gone, at the beginning of business hours on any Monday morning, and tendered his services, at the same time demanding his week’s wages in advance; the garnishees might have refused to pay, cmd it would constipate no breach, of the contract; because it could, at most, be construed only as a refusal to employ, and this light they possessed. The power of discharge at any time would necessarily involve the power to refuse doing anything which would operate as a continuance of the employee in service. No action could possibly lie on such an alleged breach. So, it is equally clear, that no action would lie by the defendant, McGetrick, for the services of any given week, after he had heen paid for such services in advance. The plea of payment would be a full defense.

We can not see that the garnishees should be held liable, because the defendant was induced, of his own volition, to abandon the first contract of employment at the end of the month of May, and entered into a new one with intention to defeat the garnishment proceedings. What would have been the effect, if the garnishees had aided, or participated in the design, by voluntary collusion, we need not decide; for it appears that the defendant refused to continue the duties of his employment, unless the new arrangement was made. He had a right to dissolve the original contract, “at the end of any month, by its express terms; and this he did, without the advice, encouragement, or collusion of his employers, so far as the record discloses. Teeter v. Williams, 3 B. Mon. (Ky.) 562, was a case strikingly similar to this in principle. The court held the new arrangement valid, although appearing to have been made for the pui’pose of protecting the defendant’s subsequent earnings from being subjected by the attachment.

It is true that the statute only exempts the sum of twenty-five dollars per month of the wages, salary, or compensation of laborers, or employees for personal service, and all sums above this are liable to garnishment.—Code of 1876, § 2823. But the sum garnished must appear to have been actually due at the time of making the answer, or else that it will become due in the future by a valid contract then existing.—Code, § 3269; Jones v. Crews, 64 Ala. 368. If the proceeds of a debtor’s labor are invested in property, not exempt, it would, of course, be liable to execution.—Patterson v. Campbell, 9 Ala. 933. So, it is plain, that he can not make an assignment of his future earnings, accruing under an existing contract, for the purpose of preventing them from being subjected by garnishment, or trustee process.—Gragg v. Martin, 12 Allen (Mass.), 498. But, at the same time, creditors have no power to compel a debtor to complete his contract for personal labor or services; and it has been held, that if he labor without compensation, or give his labor away to another, his creditors can not charge the donee who receives the benefit.—Hoot v. Sorrel, 11 Ala. 386; Hodges v. Cobb, 8 Rich. (S. C.) 50. The law has great regard for the high moral duty resting upon the debtor, to provide a maintenance and support for both himself and family, at least to the extent of necessary wants; and it may often be the case, that his only resource available for this purpose must be the wages of his labor. Hence, conclusions of fraud will not be too readily drawn, in construing contracts made to effectuate this purpose.—Bump on Fraud. Conv. (2d Ed.) pp. 244-45; Leslie v. Joyner, 2 Head (Tenn.), 514; Hall v. Magee, 27 Ala. 414.

The contract in question being free from legal objection as rightfully made, its terms and conditions can not be interfered with, interrupted, or changed in any manner, through operation of the garnishment proceedings. This is not the scope or function of such process. In the absence of fraud, it can act only on the legal rights of the defendant, as they exist under, and are fixed by his contract with the garnishees Drake on Attach. § 594; Swisher v. Fitch, 1 Sm. & Marsh. 541; White v. Richardson, 12 New Hamp. 93; Hall v. Magee, 27 Ala. 414.

The judgment of the City Court must be affirmed.