Black v. Paul, 10 Mo. 103

Black v. Paul

10 Mo. 103 | Mo. | 1846

Scott, J.,

delivered the opinion of the Court.

Paul was served with a garnishment on an execution, by Black, who had obtained judgment against Baird. To the usual interrogatories he responded, that Baird, the defendant in tbe execution, agreed to put up for him a balcony, for which he had paid him $300 in advance, and that *105he refused to pay any more until the work was completed. That Baird then told him that he was indebted to D. D. Page, and that Page was pressing him. Paul, the garnishee, then offered to pay Page any balance that might be due, when the balcony was finished, which was agreed to and desired by Baird. Thereupon, long before Paul was summoned as a garnishee, at the request of Baird, he agreed with Page to pay him the balance that would be due when the work was done. That after the balcony was finished, and before he settled with Page, he was garnisheed at the suit of Black, in an amended answer, Paul states that it was expressly agreed among the three, Page, Baird and himself, that he should pay any balance he might owe Baird, to Page. Black denies so much of Page’s answer as asserts the existence of any agreement among Page, Baird and Paul, relative to the payment of the balance.

Black asked the following instructions, which were refused, viz :

I. The answer of said garnishee setting up an arrangement by which Page was to receive the balance admitted to be due Baird by said Paul the garnishee, is not of itself evidence of such an arrangement, entitling Page to receive the money; and unless such an arrangement be proved and established by said garnishee, the plaintiff is entitled to judgment against the garnishee.

II. The answer of said garnishee setting up an arrangement by which Page was to receive the balance admitted to be due Baird by said Paul the garnishee, is not sufficient to exonerate and discharge said garnishee in this proceeding, unless it is expressly proved by said garnishee that so much of the debt as was originally due by him to said Baird, should be, and was extinguished by the new arrangement; and that such ex-tinguishment does not take place unless the garnishee proves that there was communication between all the parties, to-wit: the garnishee, defendant, and Page, and an express agreement by said Page to accept the said Paul, and him only, as his debtor for the amount of the said balance. There was a verdict and judgment for Paul the garnishee.

It has been repeatedly decided by this Court that the answer of a garnishee is evidence. Davis vs. Knapp & Shea, 8 Mo. Rep., 657. Gwathmey vs. Stevens, 9 Mo. Rep., 640. The principle of equity law which has been urged by the plaintiff in error, that where a party admits an indebtedness, his answer setting up facts in avoidance of it is not admissible, has no application to this case. Paul is asked if he is indebted to Baird, he answers in the negative, and shows the reasons for his answer. He does not seek to avoid any indebtedness on his part. He acknowledges that he owes the debt, and only wishes to know to' *106whom it is to be paid. It is a matter of indifference to him to whom it is paid. Black has called on him to answer ; under oath he has done so, and it would be strange that no respect should be paid' to what he says. He is a competent witness between these parties, for he stands indifferent between them. Suppose Paul in his answer had failed to state the agreement by which he had become pay-master to Page, and Baird had ■ recovered his debt from him, would not Paul have had an action against him on their contract ? St. Louis Perpetual Insurance Company vs. Cohen. 9 Mo. Rep., 442.

In the case of Tatlock vs. Harris, 3 D. & E., 180, Buller says, “ if A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them that A. shall pay C. the £100, B.’s debt is extinguished, and C. may recover that sum against A. This principle has been repeatedly recognized. 7 N. H. Rep., 395. Heaton vs. Augier. Wilson vs. Coupland, 7 E. C. L. Rep., 77. Wharton vs. Walker, 10 E. C. L. Rep., 303.

It follows, then, that there was no error in refusing the instructions asked by Black, and Judge Napton concurring, the judgment is affirmed*