| Ark. | Feb 24, 1913
(after stating the facts). It is contended, first, that appellee acquired no lien by his garnishment proceeding in the'circuit court and that the assignments from Shields & Co. contained in the deed of trust and also the order from them to the board directing the payment of the balance due upon his contracts to the Goyer Company were made prior to the transfer of the cause to equity and the fixing of the lien by the equitable garnishment and that he acquired no lien against said fund thereby.
The levee board was one created for public purposes and given certain powers and required to perform certain duties for the public good and was an agency.» for the government in fact for such purposes, and, asi such, was not subject to garnishment at law. Upon the: transfer of the suit to equity, however, the allegations, of the insolvency of the contractors and that appellees was without remedy at law, he could have subjected the • funds in the hands of the levee board due the contrae?tors to the payment of Ms debt witMn the doctrine heretofore announced in Plummer v. School District, 90 Ark. 236" date_filed="1909-04-26" court="Ark." case_name="Plummer v. School District Number 1">90 Ark. 236.
Neither the contractor nor the sub-contractor could have had a lien upon the levee constructed for labor performed nor materials furnished. It may also be conceded that the intervenor company had valid equitable mortgages and assignments of the funds in the hands of the levee board, due SMelds & Co., contractors, for the construction of the levee under his contract with it, and that such mortgages and assignments were made and recorded in CMcot County, at the time Williamson contracted with Shields & Co. to do a portion of such levee work. It is also true that the written assignment of Shields & Co. of the balance of the fund due upon the completed work of date March 7, 1911, to Goyer & Co., was turned over to the levee board by said company before the transfer of this suit to eqrnty. Under these' conditions, he could not have acquired a superior right to subject any of the funds in the hands of the levee board, due-to Shields & Co., for the construction of the levee to the payment of his debt against Shields & Co. for the construction of the Avork under Ms sub-contract, since he could have no lien for any such work done, nor materials furnished nor against the funds in the hands of the levee board until the filing of his creditor’s bill in the chancery court.
The testimony, however, shows that at the time of entering into the sub-contract for the construction of certain of the levee work, he notified Goyer & Co.,- intervenors herein and mortgagees of T. S. Shields & Co., the principal contractor, of his sub-contract, and there was no objection to it, upon the part of the intervenor. It is admitted that he bought his supplies from said intervenor company and that all the payments that were made to him for work done under the sub-contract were made through said Goyer & Co. after the estimates of the work had been made, the money collected by Shields, of the firm of principal contractors and turned over to said Goyer & Co. That they had paid him all the amounts so collected, shown to be due for his work under the subcontract, except in one instance, where Shields had diverted some of the money and lost it in a cotton future deal. Williamson testified that thereafter he went to the Goyer Company for an understanding and settlement and was assured by the manager that he would be paid the amount of the retained percentage under the contract with the levee board, still in its hands, upon the completion of the work, if he would continue until his work was completed. It is true, the manager denies this, but he says: “I stated to him that I would pay him nothing until after the money was collected, and paid over to me by Shields, but I did state to him that when all the work was completed on the contract, and the Goyer Company was paid, I would pay him $1,000 retained percentage, he claimed was owing him.” The contract had been completed and all the money due therefor under the contract with Shields & Co. for its construction had been paid to the Goyer Company, so far as the record discloses, except the retained percentage and the amount ordered held by the court’s order, subject to the payment of the amount due Williamson under his sub-contract, if he should recover in this suit.
It is true, the testimony does not disclose that the contractor received a greater amount of compensation for the construction of the levee work than he agreed to pay to the sub-contractor-upon the portion thereof constructed by him, but it may be assumed that they did, for otherwise there would have been no interest to the contracting firm to make a contract and allow the subcontractor the same rate of compensation for a portion of the work that was to be received by the principal contractor for the whole of it.
The chancellor could well have found from the entire course of dealing between the interveno r company and appellee herein that it recognized his sub-contract, expected to pay him the amount that was agreed to be paid by the principal contractor thereunder; that it did pay him all such amounts as were received by him under his sub-contract after the collections thereof by the principal contractor and delivery to them, except in the one instance of the cotton future deal, already mentioned, and that it agreed upon his completion of the sub-contract to pay him the balance due under his contract of the retained percentage thereon in the hands of the levee board. The manager’s statement is really not in conflict with this finding. He said, “I did state to him that when all the work was completed on the contract, and the Coyer Company was paid, I would pay him the $1,000 retained percentage he claimed was owing him.” He surely could not have expected Williamson to understand from this statement that he meant when all of the contract was completed and all the work was completed on the contract and the Coyer Company had been paid in full all indebtedness owed it by Shields & Co., the principal contractors, that he would then pay the amount 'of the retained percentage claimed. He certainly did not say that and from his own statement it could well appear that upon the completion of the whole work for the levee board and the final payment therefor by it that the sub-contractor should have the amount of the retained percentage claimed to be due; the Coyer Company, of course, then having received all the money that would come to it or was expected to come to it upon the contract of Shields & Co. after the sub-contract made with Williamson.
Under these circumstances, it would be unjust and inequitable to permit the Coyer Company now to claim and hold this fund when its whole course of dealing showed it expected Williamson to have the money earned under his sub-contract, when it paid him all such sums as he received thereunder after having collected it through Shields & Co., and promised before the completion of the work to pay Mm the balance claimed to be due upon payment therefor by the levee board after he had completed it. Intervenors are now estopped to claim tMs fund as against Mm.
The decree of the lower court was correct and is affirmed.