*1 Darlington-Miller Lumber Co. v. Co. Darlington-Miller Company v. National et. al.

Decided March 1904. —Garnishment—Surety Company—Deposit. 1. Plaintiff, having contractor, gar- a a was not entitled to deposit which the contractor nish a a as an indemnity bonding him, where amount which the contractor, deducting attorney after fees, owed commissions yet unsettled and not ascertainable. Deposit—Power —Assignment Attorney—Judgment. of 2. of claiming one contractor, An be an for a given indemnity bonding him, a indebted, whom such contractor to one to held ineffective because supported assign that no such given against to that effect would involved assignment. claim under before Tried below District Court Galveston.

Appeal Hon. Frank M. Spencer. Stubbs,

James B. & Chas. for appellant. H.

Mart Royston, appellees. PLEASANTS, In a by appellant against suit recover an indebtedness upon application of of June,

appellee, day garnishee answered on the 17th day October, The had in its possession which had been deposited defendants J. M. Archer Son for the protecting any loss or garnishee against damage might said defendants a bond defendants to Colorado & Santa Fe secure the faith- ful defendants of a contract wherein performance by building a building undertaken construct for said city Cleburne, Texas. answer further shows that liability bond had not terminated and garnishee upon garnishee had not therefrom, and be not prays required 'released until turn over it shall have been released from portion bond. liability upon June, the 5th 1902, appellee On Hamilton day intervened the $600 suit in the hands of the claiming in this under an thereof March also 1901. The intervener pleaded in the hands of subject because the writ the garnishee the liability served defendants was conditional uncertain. Intervener prayed dismissed and that he have *2 the of the garnishee. Plaintiff, by supplemental.petition, joined by general denial issue special 30, 1900, that on the pleading, November alleging Son, J. M. Archer & consideration, made, for a valuable executed delivered assignment transfer held by $600 the National the written Company, Surety assignment being full Plaintiff further pleading. it alleged notified the National its of said through agent, December and that notice thereof accepted by garnishee. Son, defendants, $600 That this & J. M. Archer by deposited with the National the the Surety Company, garnishee, purpose securing the National indemnifying Surety Company upon bond executed it as for J. M. & Son. the by Archer That the has released National railway company the the $600 on the bond and held com- obligation surely is now due and

pany plaintiff. by virtue payable transfer and the National holds the $600 Surety Company M. & Son in trust for by J. deposited plaintiff. is for from the prayer National recovery said sum of transfer and held $600 and owned

n byplaintiff. conclusions of In from the record fact: following deduce November, Son, 1900, M. Archer & who then indebted to ap- credit order to obtain additional represented appellants pellants, had on with herein they said which had been with loss placed protect' said Archer & had been surety upon bond of Son which out, in the answer of the before set stated as soon could have they would be within the next few days, stated they be released would same over to $600 would pay appel- this Belying upon promise appellants lants. representation gave & Son to the the value credit to said Archer extent additional Miller, A. W. appointed loads of lumber. At appel- two car to collect went to Dallas lant's president, Archer, who senior member of his firm and

company. Dallas, but appellants, with had made not was seen by firm Miller and stated the matter fix Pierce, had charge Frank called Miller thereupon received instrument: following him the Lord, “Dallas, 1900.—To F. B. Southern Nov. Agent, Dallas, Texas: Dear Sir.—When the rail- Surety Company, shall have bond which you gave behalf road Son, for the construction of the of J. M. Archer Cleburne Young Darlijstgtoe-Mileer. (six building, please pay Association Men’s Christian security, as collateral deposited' dollars) my This is in pursuance Lumber Company. Miller Darlington Very Frank you. truly, filed with heretofore for Archer Son.” Pierce, Attorney de- to make the for J. necessary it became When intervener went with said J. posit bank a note with him bank to a Dallas and executed check for sum. a cashier’s from said bank and secured col- money indorsed to the compapy This check in this suit. When constituted lected thereon became due intervener to the bank Archer and the note thus created In the debt payment the intervener. was paid *3 the fol- the intervener and delivered Son executed M. Archer & J. of said deposit: lowing March, Bros., Dallas, 1901.—Crutcher Texas: “Dallas, Texas, Dallas, Texas, Hamilton of will please pay Gentlemen.—You Y. M. hold on the C. A. money you job, dollars bond the six us. shall be same. Cleburne, Texas, your receipt Should Pierce, our F. will attend Mr. receipt, you require Son,& M.' M. Archer J. it, truly J. Archer.” yours, oblige, and was there had no been time,the garnishment At the and the Son between which Son deposit, the proportion the surety receive back from was uncertain company was entitled to Prior to the court below the had and conditional. matter the railway & Son and and the between-Archer adjusted thereof, as to except garnishee’s ampunt was entitled it was hold as com- agreed fees. attorney’s missions and herein, rendition of the

On June prior ap- recovered judgment against pellant that the full amount due indebtedness said defendants. being A. Miller, The affidavit by W. president He testified that at the manager time he made the affi- davit that “was indebted defendants or charging in its funds to the defendants he belonging possession” had that knew its possession the fund exe- cuted as for the' defendant. The treasurer of the & Santa Fe Railroad Colorado testified for 1900 his that had several during year contracts defendants, and that all matters pertaining contracts the defendants were Frank Pierce their represented by attorney in fact. That said Pierce written defendants which with the was filed witness as treasurer of the railroad. paper Có. y. 349 Go. therefor search made diligent he had lost, though find unable to it. a jury, without below tried in the court cause court rendered out the trial and evidence above pleading against plaintiffs intervener in favor entitled being adjudged the garnishee proceedings; costs attorneys as commissions in its possession retain of the parties. in accordance fees to recover under not entitled well settled plaintiffs It that the garnishee reason for the proceeding amount the time the ascertainable the defendant indebted to Waples-Platter filed. answer writ was served Gro. Co. v. judgment upon reversal of the not seek a ground does

Appellant but insists such, to recover was entitled that it of the fund it held prior shows intervener, fund recover said therefore entitled to and was under subsequent assignment. who claimed by suing this contention insists appellant,

In answer to appellee to reach the thereby seeking out his writ as the aban of the garnishee property from now assert estopped doned its claim Smith, Vt., 132, The cases Shattuck v. such claim. ing McKenzie, 55 N. W. seem to sustain *4 Rep., Lawrence v. appellee’s however, unnecessary, find it to decide this question, We proposition. of the court below judgment should be as we opinion are To another entitle to recover the ground. affirmed upon to show that the under which it claimed burden was of the defendants. authority is evidence was executed There alone sufficient to standing record 'to was authorized defendants that Pierce execute finding is considered the court but when entire assignment, had not authority that such been shown. The was justified in favor of the intervener includes validity not establish the his and we did the plaintiff the case sufficient sustain this think the evidence in finding. the court below are of opinion should is so

affirmed, ordered. and it

Affirmed. FOR MOTION REHEARING. ON PLEASANTS, In our this cause opinion state that the firm of we filed March that Frank (Miller) & Son informed appellant’s agent firm in making authorized to act for said Pierce was Dabhngton-Milleb Subety Gaenishee. of the fund in appellant statement controversy. not borne the record. When Miller went to Dallas to secure this assignment he did not see either member of the firm of J. M. Archer & J. P. Son. Archer, who stated to Miller that Pierce was “to fix authorized him,” matter with was not a member firm, and it is not shown what connection, if had therewith.- We adhere to our former conclusion that evidence' in this case is sufficient to sustain the trial court that the assignment under which claims of M. and the motion for authority rehearing

is overruled.

Overruled.