Hearn v. Foster

21 Tex. 401 | Tex. | 1858

Roberts, J.

In determining the sufficiency of the petition,, it is not proper to regard the facts as stated by the Justice in. his transcript, in opposition to those set forth and sworn to-in the petition for certiorari.

The question is did the right to the money deposited by the-agent of Robinson & Go. in the hands of Hearn, accrue to. and vest in John T. Mills before the writ of garnishment was served on Hearn ? Mills’ right to the money by the original terms of the deposit was made to depend upon the attachment against Robinson & Co. being quashed; which contingency had happened, and immediately after which and before the garnishment was served, Mills had demanded the money from Hearn. The consideration of this bailment was the service to be performed by Mills as an attorney in the attachment suit. The general rule is that if one has deposited money in the hands of a bailee to be delivered to a third person, he may countermand the order at any time before the delivery to the third person or his assent thereto.

“ But after the third person has assented thereto, the bailment is not countermandable, if there is a valuable consideration for the bailment.” (Story on Agency, Sections 465 and 477.)

Mills having quashed the attachment, and demanded the money, his right to it attached in the hands of the bailee, and it was not subject to the garnishment. This ruling is of course predicated on the absence of any allegation that the contingent transfer of the money to Mills was in fraud of creditors.

We are of opinion, therefore, that the Court erred in dismissing the petition. Judgment reversed and cause remanded.

Reversed and remanded.