Bishop v. Young, 17 Wis. 46

17 Wis. 46 | Wis. | 1863

By the Court,

Cole, J.

Upon the facts disclosed in this case, we do not think the garnishee was liable. Grant had not performed his contract at the time of service of process, and consequently it was impossible to say how much would be due him. It appears that he had been paid all that he was entitled to on the contract, if not more. Whether he would be entitled to anything further depended upon the time and manner of his completing the building. If he did not finish the stores and offices by the first of January, 1860, he was to pay Young such sum as the latter might have leased them for; while for the hall he was to pay at the rate of twenty dollars a day as stipulated damages, after the building was to be completed. With such stipulations in the contract, it was of course impossible to say what would become due him. What would be the amount coming to Young in consequence of the delay in performing the contract? Who could say that the damages arising from the delay in finishing the building might not amount to more than the part of the contract price which would remain unpaid ? And Grant might abandon the work altogether, in which event nothing would be due him. Our statute says that the garnishee, from the day of service of the garnishee process, shall stand liable to the plaintiff in attachment to the amount of the property, moneys and credits in his hands, and debts due or to become due from him to the defendant. Sec. 35, chap. 130. The “ property, moneys and credits” here spoken of, are such as are in the hands of the garnishee, which belong to the principal debtor. And the “ debts due or to become due,” evidently relates to such as the garnishee owes absolutely, though payable-in the future. We have no idea the statute intended to include in the language “to become due,” a debt which might possibly become due upon the performance of a contract by the defendant in attachment. As already said, Grant was doing work under a special contract, and whether anything would be due him upon it depended upon the time and manner he performed it. There was nothing absolutely due him at the time of service of garnishee process upon the respondent. And whether anything would ever become due depended on a contingency.

We therefore think the garnishee was rightfully discharged. See Williams v. Androscoggin & Kennebec R. R. Co., 36 Me. R., 201; Harris v. Aiken et al., 3 Pick., 1; Kettle v. Harvey et al., 21 Vt., 301.

The judgment of the circuit court is affirmed.