186 Pa. 428 | Pa. | 1898
Opinion by
The plaintiff entered judgment against Hardin, defendant, for SI,487.53, then issued attachment execution against Malmedie and summoned him as garnishee. Interrogatories were duly served, and Malmodie answered, in substance, that he was builder of certain dwelling houses in the city of Philadelphia, and had contracted with Hardin, the defendant, to do the plastering for the price of 16,000, seventy per cent of which was to be paid as the work progressed, and the balance, thirty per cent, when the work was fully completed; that Hardin had not fulfilled his contract, as he stipulated he would, and specified wherein he had failed; that respondent had paid to him, up to the date of service of attachment, $2,712.47; that by the terms of the contract it was agreed that if Hardin failed to
To the sixth interrogatory^ he answers, that by the contract he owed nothing to Hardin at the service of the attachment, or at the date of his answer. To the seventh interrogatory, he makes a positive denial of any indebtedness whatever to Hardin, and avers that he, Hardin, did not claim then, or at any time, that any balance was owing to him under the contract.
The court below, on its construction of the contract, was of the opinion that the seventy per cent payable during the progress of the work, amounting to $4,200, was due, and therefore gave judgment against the garnishee for $1,487.53, with interest, amount of plaintiff’s claim, and the garnishee now appeals.
The subject of the right of plaintiff to judgment on answers of garnishee has been very recently considered by this Court in opinion by the Chief Justice, McCallum v. Lockhart, 179 Pa. 427: “ A garnishee’s answer is not to be construed with the same strictness as an affidavit of defence. . . . For insufficient answers, the plaintiff may except or demur. But judgment cannot be entered against the garnishee, unless he expressly or impliedly admits his indebtedness. . . . There must be a distinct admission of liability such as leaves no doubt.”
We think a proper construction of the contract, in view of the answers of the garnishee, must turn on a question of fact to be determined by a jury. As before noted, tire garnishee, in his answers, flatly denies any indebtedness to Hardin. The latter stipulated he would do all the work and furnish all the material for plastering eighteen houses according to the' plans and specifications ; that he would do the plastering in a workmanlike manner, and prosecute the work with promptness and
In our opinion, the judgment of the learned court below was at least premature; therefore it is reversed, and it is directed that the cause be proceeded in for trial before a jury.