83 S.W. 215 | Tex. App. | 1904
This is a garnishment proceeding instituted by C. R. Hutcheson, as a judgment creditor of J. W. Golden, against Harry Tom King, as garnishee, in the County Court of Taylor County. The following are the findings of fact and conclusions of law filed by the county judge upon which he rendered judgment discharging the garnishee: "I find that at the time the writ of garnishment was sued out in this cause, J. W. Golden was indebted to C. R. Hutcheson in the amount of a judgment for the sum of $201.50, dated the 21st day of February, 1903, with 6 percent interest from date of the judgment, and $7.65 costs in procuring said judgment, and that the garnishment in this case against Harry Tom King was sued out on this judgment, which judgment was wholly unsatisfied at the time of the trial in this cause. I further find that the writ of garnishment was served on Harry Tom King the 30th day of September, 1903, and at the time that said writ was served on said Harry Tom King the said King had in his *153 possession for delivery to M. C. Lambeth two notes, payable to the said J. W. Golden and belonging to the said J. W. Golden, one for the sum of $200 and one for the sum of $300, the note for $200 being due February 13, 1905, and the note for $300 being due February, 1906, and the said notes were negotiable promissory notes executed by Harry Tom King and payable to J. W. Golden or order, and that when said writ of garnishment was served on said King he had said notes in his possession as agent, and now has said notes in his possession as agent of J. W. Golden. I further find that said J. W. Golden, a few days before the writ of garnishment was served, contracted to sell said notes to M. C. Lambeth, and sent the notes to Harry Tom King to be delivered to said M. C. Lambeth on the said Lambeth paying to said King for Golden the purchase price, and that the said King at the time he was served with the writ of garnishment held the notes as the agent of J. W. Golden, and at the time of the trial of this cause, and that said notes are negotiable promissory notes and are not due. I further find that said notes bear 8 percent interest from date, and that they provide the usual 10 percent attorney fee clause. I further find that M. C. Lambeth never paid anything for said notes, and is asserting no claim to them in this suit.
"Conclusions of Law. — The notes being negotiable promissory notes and not being due, are not subject to the garnishment in the hands of a third party who is the agent of the owner of the notes, although the third party is the maker of the notes. The garnishee is therefore discharged."
It is the general rule, we believe, well established by the authorities in this state, as well as elsewhere, that the maker of a negotiable promissory note, while the same is current and not yet due, can not be held liable as garnishee at the suit of a creditor of the payee of such note. The reasons for this rule are found in the facts of the negotiability by law of such paper, and in the liability of the garnishee to the holder of the note, whether he be known or not. Price v. Brady,
It is true that under our statutes (Rev. Stat. of 1895, art. 307) the rules of the law merchant with respect to the transfer of negotiable paper are not in all respects applicable to us. Such transfer may be made without indorsement and delivery; it may be made by assignment, either written or oral. Word v. Elwood,
It is contended, however, that the transaction between Golden and Lambeth amounted to an executory contract to convey the notes in question, and for this reason the judgment of the trial court should be affirmed. But let it be conceded that the findings show an executory contract for the sale of the notes in question, it nevertheless does not follow that the garnishee should be discharged. We understand the rule to be that in cases of mere agreement to sell in the future, the sale itself is not actually consummated; the title does not pass, but the thing bargained remains the property of the bargainer, and as such liable to be taken in attachment or garnishment for his debts. Tomlinson v. Collins,
No reason is suggested in this case why Lambeth's action for damages for breach of this executory contract would not be an adequate legal remedy. Moreover, it can hardly be said that Lambeth is now, or can hereafter be, in a position to invoke the equitable powers of the court to decree a specific performance, inasmuch as he has in no way performed his contract, nor could he perform under such circumstances as to be without notice of appellant's rights in the premises. At best the courts lend little encouragement to actions for the specific enforcement of contracts to convey choses in action. Rollins Inv. Co. v. George, 48 Fed. Rep., 776; Wyatt v. Mayfield,
Upon the trial court's findings of fact it is ordered that judgment be here rendered for the appellant, C. R. Hutcheson, against the garnishee, Harry Tom King, for the amount of his debt, together with interest, but that execution thereon be stayed until February 13, 1905, when he may have his execution therefor, not to exceed the amount due on the garnishee's note maturing on that day; and for any balance remaining unsatisfied on this judgment he may have his execution on February 13, 1906. Marble Falls Ferry Co. v. Spitler, 7 Texas Civ. App. 82[
Reversed and rendered. *156