108 P. 912 | Mont. | 1910
delivered the opinion of the court.
On June 14, 1905, this plaintiff commenced an action in the district court of Park county against the Yellowstone Park Telephone and Telegraph Company (hereinafter referred to as the Park Company), and Frank A. Hall, to recover $4,982, with attorney’s fees and costs, on a contract for the direct payment of money. A writ of attachment was issued, and on June 26 served upon the Eocky Mountain Bell Telephone Company (hereafter referred to as the Bell Company), as garnishee. Such further proceedings were had in the action that on February 8, 1906, a judgment in favor of plaintiff and
There is not any conflict in the evidence. Before trial the plaintiff demanded a bill of particulars which would show the debts and liabilities of the Park Company, to pay which the $5,000 was withheld by the defendant. In compliance with this demand, a bill of particulars was furnished, the items of which are as follows:
2. “ “ “ Cory.......................... 139 00
3. “ “ “ Miller ........................ 150 00
4. “ “ “ Montana Electric Company...... 2,109 40
5. “ “ “ Enoch ........................ 82 50
6. “ “ “ Ludwigson .................... 207 50
7. “ “ “ Montana L. & Mfg. Company..... 479 72
8. “ “ “ Eickman....................... 23 90
9. Claim of Eocky Mt. Bell Tel. Co................ 394 71
10. Expense redeeming Bonds...................... 587 36
11. Claim of Chicago Tel. Co...................... 543 44
12. “ “ John Walsh......................... 56 65
13. “ “ Thompson Falls Mere. Co............. 459 00
14. “ “ Ludwigson .......................... 101 70
15. “ “ Miles ............................... 46 25
16. “ “ Turners ............................ 34 65
17. “ “ Fransham........................... 51 00
Total .......................................$5,649 23
The evidence discloses that on June 23, 1905, the Bell Company purchased from the Park Company certain telephone and telegraph lines, and the instruments, easements and fixtures used in connection therewith, for the sum of $25,000; and at the same time the parties entered into a contract ’in writing, by the terms of which it was agreed that $20,000 of the purchase price should be deposited with the American Trust and Savings Bank, of Chicago, to be by that bank applied to the payment of certain bonds of the Park Company, then outstanding and secured by trust deed or mortgage. The Park Company agreed to have the trust deed or mortgage satisfied of record, and “to pay all costs and charges by way of premiums or otherwise of redeeming said outstanding bonds and satisfying said mortgage.” The contract further provides: “The balance of said purchase price, to-wit, $5,000.00 shall be paid by the party of the second part [Bell Company] and by it ap
The defendant having admitted the possession of the $5,000,. the plaintiff, to make out a prima facie case, introduced evidence showing the claims outstanding against the Park Com-: pany which were encumbrances upon the property, and that, but $50 had been paid in satisfaction of the Bronson claim,, and but $70 in satisfaction of the Enoch claim, and rested.. The defendants then introduced evidence showing: That it had', paid full value in satisfaction of the Bronson and Enoch claims,, and that it had paid $2,109.40 in satisfaction of the claim of the-Montana Electric Company; that it had paid $461.40 as expenses incident to the discharge of the outstanding bonds of the Park Company; that it had retained $394.71 in satisfaction of a claim which it had against the Park Company; and. further that in July, 1905, Frank A. Hall, president of the Park Company, had authorized it to pay out of the $5,000 the-following claims: Chicago Telephone Company, John Walsh,. Thompson Falls Mercantile Company, A. Ludwigson, A. W. Miles, Pauline and Lillian Turner, and W. J. Fransham, and. that the balance of the $5,000 was retained by it to discharge, these claims, or so much thereof as such balance would pay.
The trial court found that the claims which were encumbrances against the property aggregated $3,374.47; that the,
1. The claims scheduled in the bill of particulars fall into two groups; the first eight claims comprising the first group. Every claim of that group was a lien upon the property for some amount, and of those claims only three are contested by plaintiff. It is contended that the claim of Bronson was discharged for $50, and the claim of Enoch for $70, and such appears to be the fact; that is to say, Bronson received only $50 for his claim, and Enoch only $70 for his. But it does satisfactorily appear that the Bell Company was compelled to pay full value for each. Someone profited by the transaction, but the record is so meager that we are unable to determine the real facts; and, since the defendant company parted with its
Claim No. 4, of the first group, presente some complications. •On October 1, 1904, the Montana Electric Company filed its ■claim against the property of the Park Company for $1,463.80. On May 4, 1905, it commenced a suit to foreclose, claiming the principal sum with interest, costs and attorney’s fees for foreclosure. On July 18, 1905, it recovered judgment for $1,585, together with costs, taxed at $28, and an attorney’s fee of $300, ■a total of $1,913. Upon this judgment execution or order of sale was issued, and the property of the Park Company sold to the Montana Electric Company for $1,977.54. On May 5, 1906, the Bell Company satisfied this judgment by the payment of $2,109.40. "With respect to the payment of this claim, P. R. Ferguson, the auditor of the Bell Company and a witness in its behalf, testified: “I do not know why we did not pay that judgment as soon as it was entered. I do not know why we allowed it .to go into judgment at all and didn’t pay it immediately after the 23d of June, 1905.” This is the only evidence in the record touching the payment of this claim. When we recall that the Bell Company purchased the property from the Park Company on June 23, 1905, and retained the money to pay these claims, its delay in discharging this particular claim for nearly eleven months, during which time costs, expenses, and interest were permitted to accumulate, is wholly inexcusable. To permit it now to be credited with the $2,109.40 which it paid for the redemption of this claim, in May, 1906, in the absence of any excuse whatever for the .delay, would be tantamount to saying that it might have deferred payment of all of these lien claims until by the accumulation of costs and •expenses they consumed the entire $5,000. But that was not the intention of the parties to the contract, and as against the claim of an attachment creditor it could not be done. The pendency of this action was-not any excuse for the delay. The Bell Company was obligated to pay the lien claims, of which
In the brief of respondent it is suggested that the appellant .did not prove that the entire $2,109.40 was not properly allowed; but, as we said above, the plaintiff made out his prima facie case by the admission of the defendant that it had the $5,000 in its possession and by showing the amount of the claims which were encumbrances on the property; and as to this particular claim he showed the amount of it and that foreclosure suit had been brought; in other words, that an amount substantially the same as the face of the judgment was necessary to discharge it. Having made this showing, it is not imposing any hardship upon the defendant to require it to assume the burden of showing that it was entitled to credit in a greater amount, since the facts constituting its excuse for the delay in making payment were peculiarly within its own knowledge. Under the evidence the defendant is entitled to credit for each claim of the first group as returned in the bill of particulars, except that the claim of the Montana Electric Company should be limited to $1,913, the amount of the judgment.
2. The second group embraces the remaining nine claims, listed in the bill of particulars. The first of these is the claim of this defendant, for $394.71. This was for telephone services furnished by the Bell Company to the Park Company, and was not a lienable claim. It was not reduced to judgment prior to the date of the levy of the writ and was not an encumbrance upon the property of the Park Company. But it is insisted that it constitutes a valid setoff against a claim by the Park Company for the balance of the $5,000, and, since the plaintiff as attaching creditor virtually stepped into the shoes of the Park Company, it can be asserted against this plaintiff. A setoff, as such, is not recognized by our Codes, and this is an action at law. It is true, as against a claim of the Park Company, this defendant, could have asserted its demand as a counterclaim, if it had pleaded it; otherwise it could
The next item in the second group is one for $587.36, and this was reduced upon the trial to $461.41, for expenses incurred in discharging the outstanding bonds of the Park Company. It will be remembered that by the terms of the written contract of June 23, $20,000 of the purchase price was to be deposited with the American Trust and Savings Bank, to be by the bank applied'to the payment of those bonds, and that the Park Company agreed to pay all costs and charges of redeeming the bonds. The authority of the Bell Company to pay $20,000 toward the discharge of those bonds is at least an implied prohibition against the expenditure of any greater amount, and we are not informed by what authority the Bell Company assumed to increase its liability. If the contract had
The other claims in this second group may be considered together. There is not a word of evidence to indicate whether any of these claims were or might become lienable. The witness Ferguson, the only one who testified in regard to them, ■did not know anything as to their character. If the claim of the Chicago Telephone Company was ever a lienable claim, the ■evidence affirmatively shows that a lien for it has never been filed, and that the time for filing a lien had expired long prior to the date of the levy of the writ of attachment. There is not .any evidence that any of these claims were for materials which went into the property of the Park Company or for labor done upon its property, nor is there any evidence to show when any of such claims matured; and therefore finding No. 10, made by the trial court, that the claim “of the Chicago Telephone Company for $477.15, Anton Ludwigson for $101.70, the Thompson Falls Mercantile Company for $459, Pauline and Lillian Turner for $34.65, and W. J. Fransham for $51, aggregating $1,123,50, were for materials furnished to and work done for said Yellowstone Park Telephone and Telegraph Company, and were referred to and intended by said last-named company under and by virtue of said contract of June 23, 1905, to be paid out of the aforesaid price of its said property, in addition to the liens, encumbrances and mortgages hereinbefore referred to in so far as the purchase price for its said property would
But it is insisted that all of the claims of this second group, excepting claims Nos. 9 and 10 above, were properly allowed under a parol agreement of June 23, 1905, made subsequently to the execution of the written contract. The written agreement provides for the payment, out of this $5,000, of claims which wore or might become encumbrances upon the property-It is now urged that under this parol agreement such other claims were to be paid as might be embraced in a schedule then agreed to be furnished by Hall, the president of the Park Company. The evidence touching this alleged parol agreement is submitted in full:
‘‘H. L. Burdick, being recalled for further examination, testified as follows: [Direct examination.] I was present when this contract between the two companies and Mr. Hall was signed. Mr. S. H. Mclntire was also present. Q. Now, was. there anything said about what claims were outstanding against the Yellowstone Telegraph Company after the making'of the-contract? A. I inquired of Mr. Hall, after he had signed the contract, if he was quite sure that the amount of claims outstanding would not exceed $5,000. Mr. Hall stated that he‘ did not at that time know, but would submit to us a list of claims which could be paid as against the Yellowstone Park Telephone and Telegraph Company. He submitted such a list as that to Salt Lake, not to me. Q. Do you know whether or not the list submitted by him is the list that is contained in the-bill of particulars attached to the answer in this case? You know the bill of particulars, you can look at it. A. A good deal of the correspondence was sent to me with reference to. these claims. The liens were submitted by me to Salt Lake. They were first handed to me. I can designate on that bill of particulars what claims I discovered myself to be against the property, and that Mr. Hall sent on to me. The claims submitted by Mr. Hall to me were Harry Bronson, C. L. Cory, Lew .Miller, Montana Lumber and Manufacturing Company*,
When we consider the subject matter of this conversation, the purpose to be accomplished, and the efforts that had already been put forth, it appears to us that there is not any room for a difference of opinion as to the effect of this evidence. The written agreement had just been executed. It provides for the payment of such claims as were or might become encumbrances upon the property then purchased. The contract in terms declares that it was the intention of the parties that the property should be turned over to the Bell Company free
But there is a suggestion found in the brief of respondent, that, at the date of the levy of the writ, the $5,000 was retained to meet the payment of outstanding claims against the Park Company, and, until the amount of such claims was determined, the Bell Company did not owe to the Park Company anything whatever; in other words, that the Bell Company’s liability was then so far contingent that it was not subject to garnishment; and Cowell v. May, 26 Mont. 163, 66 Pac. 843, is cited, and the following quoted from the opinion: “Although the immaturity of a debt at the time of garnishment is, of itself, unimportant in so far as the ultimate liability of the garnishee is concerned, yet, in order to charge him, there must be an existing debt at the time of the service—a contract under which a debt may or may not arise is not sufficient. There must be at the time of the service a debt due or to become due, and not a contingent liability or a conditional contract merely. ’ ’ And this is followed by a quotation from section 551, Drake on Attachment. That this is a correct statement of the rule is evidenced by the authorities generally; but if the liability of the garnishee is certain, and the only uncertainty which exists is as to the amount of such liability, then the debt, whatever it may be, is subject to attachment. This is the meaning of section 6667 of the Bevised Codes, and is the rule recognized by the authorities. (20 Cye. 1008, and note; 14 Am. & Eng. Eney. of Law, 2d ed., 769; 2 Wade on Attachment, sec. 450; Webster Wagon Co. v. Peterson, 27 W. Va. 314; Miller v. Scoville, 35 Ill. App. 385; Downer v. Topliff, 19 Vt. 399.) In 2 Shinn on Attachment and Garnishment, section 481g, it is said: “The contingency which will prevent the property or debt from being attached must be such a contingency as affects the property or debt itself, and not simply one which affects the liability of the garnishee to have the effects or credits taken from him in a particular manner. It must be such a con
There is not any difference in principle, and.little, if any, in the facts, between the present action and the case of New England Marine Ins. Co. v. Chandler & Burroughs, 16 Mass, 275. In the latter case Chandler was indebted to the Union Bank and to other parties, including the insurance company. He transferred to Burroughs, as trustee, certain certificates of' stock, with the understanding that Burroughs should sell the-stock, pay the bank, and turn over any surplus to Chandler, Before the securities were sold, Burroughs was served with gar-, nishment process in an action by the insurance company against. Chandler. Burroughs answered setting forth the facts, from, which it appeared that the value of the available assets in his hands exceeded Chandler’s indebtedness to the bank, and the-court properly held' that, though the insurance company’s case-would have to be delayed until Burroughs could sell the securi-. ties and account for the surplus over the amount due the bank, such surplus, whatever it might be, was a garnishable debt. The Massachusetts case is cited with approval in Cutter v. Perkins, 47 Me. 557.
If in this present case the Bell Company had made answer-to the. garnishment immediately after service of the writ, it. would have been compelled to set forth that it had in its hands, as trustee for the Park Company, $5,000, out of which it was. obligated to pay all claims against the Park Company which were then or might become encumbrances upon the property transferred by the agreement of June 23; that the amount of encumbrances then on- the property was $3,178.07; that there-were the outstanding claims of Walsh, Thompson Falls Mercantile Company, Ludwigson, Miles, the Turners, and Fran-, sham, aggregating $749.25, which might or might not be lien-able, dependent upon the character of the claims and the time when each matured. Such would have been a full and fair return by the garnishee, and it would have shown a substantial balance in its hands, which under the contract be-.
Since there is not any dispute as to the facts of this case, a new trial is not necessary; but the cause is remanded to the district court, with directions to set aside its findings and judgment, and enter judgment in favor of the plaintiff for $1,821.93 and costs.
Reversed and remanded.
