Conshohocken Tube Co. v. Iron Car Equipment Co.

181 Pa. 122 | Pa. | 1897

Opinion by

Mr. Justice McCollum,

The Conshohocken Tube Company having a claim against the Iron Car Equipment Company issued a writ of foreign attachment for the collection of it and summoned the Philadelphia & Reading Railroad Company and its receivers as garnishees. The plaintiff having obtained judgment against the defendants proceeded in due course to ascertain whether the garnishees Avere indebted to the latter, and if so, in what amount. The garnishees in their answers to the interrogatories filed by the plaintiff admitted an indebtedness of $4,935.65 for railroad supplies furnished on orders sent to and apparently filled by the defendant, but they also stated in their answers that they Avere informed that the orders were in fact filled, and the money due for the supplies furnished on them Avas claimed by the Railroad Equipment Company. Judgment was entered against the garnishees, and from it an appeal was taken to this court where the judgment was reversed “with instructions to the court below to discharge the rule for judgment against the garnishees and proceed to determine the right of the claimant, the Railroad Equipment Company, to the fund attached, by an issue to be tried before a jury: ” Conshohocken Tube Company v. Iron Car Co., 167 Pa. 589. On the trial of the issue thus directed the court below instructed the jury to “ render a verdict for the plaintiff for the sum of one hundred and fifty-six dollars.” The case is now before us on appeal by the plaintiff, the Conshohocken Tube Company, from the judgment entered on the verdict. The plaintiff contends that the issue involved a question of fact which should have been passed upon by the jury. This contention is well founded if the evidence warranted a verdict for a larger sum. It is quite clear from the answers to the interrogatories and the testimony of Jones that the garnishees understood that the supplies were furnished by the Iron Car Equipment Company, and that the payments made to Post, Martin & Co. and to Post & Pomeroy on account were made to them as its agents. The bill of April 4,1893, for $156, and on which a recovery was allowed, was for supplies bought of the Iron Car Equipment Company and was paid by the receivers to Post & Pomeroy on August 30, 1894. The bills rendered against the receivers under date of July 26, 1894, for supplies furnished in 1893, and amounting to the sum of $1,201.34, were made payable “ to Post & Pomeroy Ac. the Iron Car Equipment Company ” and approved by the treasurer of said company. These bills considered in connection with the contract or agreement of September 4, 1890, between the Iron Car Equipment Co. and the Philada. & Reading Railroad Co., were certainly consistent with and corroborative of the understanding or belief of the garnishees that the supplies were furnished by the former. Nothing appeared in any of the bills rendered for supplies to indicate that they were furnished by another company or party. The only witness who testified in support of the claim of the Railroad Equipment Company to the fund attached was John D. Reynolds “ who was a clerk in the office of Post, Martin & Co., who were succeeded by Post & Pomeroy.” His testimony was all there was in the case tending in any degree to show that the Railroad Equipment Company furnished any part of the supplies or was entitled to any part of the fund. It was in some respects self contradictory and unsatisfactory. As it was the only support of the only claim which denied the plaintiff’s right to the fund it was for tbe consideration of the jury, in connection with the evidence, tending to show that the supplies were furnished by and the money due on account of them belonged to the Iron Car Equipment Company at the time the fund was attached. The learned court below therefore erred in the instruction complained of.

Judgment reversed and venire facias de novo awarded.