L. J. Dolsen & Son v. E. Brown & SonL. J. Dolsen & Son v. E. Brown & Son
This suit was commenced by attachment. G. W. Betterton Co. were garnished, and answered the interrogatories propounded to them, as. follows :
First. “We have a balance due E. Brown & Son, of Cincinnati, оn book account, as per account hereto annexed, two hundréd. and eighty-three dollars and twenty cents, and one hundred and forty-eight packages of butter, valued by us at $1200, which we hold subject to thе order of your honorable court. Against the balance of account and goods on hand, there is a draft by Messrs.. E. Brown If Son, and indorsed to Messrs. Swazey If Co. for $1,500, which was presented for acceptance the day and prior to the writ of garnishee being served on us, which draft was not accepted by us.”
Second. “ We are indebted to the firm of Messrs. Brown If Son to the amount of two hundred and eighty-three dollars and twenty cents.”.
John Swazey if Co. intervened, and alleged that' they were the holders of the draft drawn by E. Brown & Son on G. W. Betterton & Co. for $1,500. That although they refused to accept it, they, nevertheless, were notified of the draft, and agreеd to hold the property and funds in their hands for its payment. That said draft was drawn against the property аnd funds, and that Betterton Co. received the same, with instructions to pay the draft out of the proceeds.
There is nо proof, however, that the garnishees received the merchandize with instructions to pay the рroceeds to Swasey Sf Có. or any one else. The evidence shows that the draft was drawn on the proсeeds of the shipment, and that the garnishees refused to accept it. That although they were willing that tho proceeds should go to the payment of the draft, they were unwilling to incur a lеgal obligation to that effect. And that they hold the proceeds subject to the order of the сourt.
In the first, the consignments are made with express instructions to pay the proceeds of sale to a third party, and the stipulаtion in favor of the third party is accepted by him. Burnside v. McKinley, 12 An. 512.
In the second, the consignments are made without instructions, and the consignor subsequently orders the payment оf the proceeds to a third person, and the consignee promises to pay the proceeds in pursuance of the order. Cutters v. Baker, 2 An. 572.
In the first class of cases, the obligation to pay is a pаrt of the original contract, and gives to the third party a right of action against the consignee fоr the proceeds of sale. C. C., Art. 1884.
In the second class, the obligation of the consignee, to рay to the third party, is created by a new and independent contract, and the right of action аrises from his express promise to pay.
This case is not within either of the classes mentioned. The сonsignment was without instructions to pay the proceeds to any one, and the consignee refused, after the receipt of the merchandize, to accept the draft of the consignor, оr to bind himself legally to pay the amount of proceeds to the holder.
If the intervenors are entitled to the proceeds, they have a right of action against the garnishees for their recоvery. The original contract between consignor and consignee gave no right of action tо the intervenors, for there is no stipulation in it, expressed or implied, in their favor. There is no subsequent contract between the garnishees and intervenors, in which the former obligated themselves to pay to the latter the proceeds of the merchandize. The intervenors are holders of the bill of exchange drawn by the consignor on the consignees, but on this they have no right of action, for the reason, that the holder of a bill of exchange cannot sue the drawee, on his . refusal to accept, for the funds on which it was drawn. Ohitty on Bills, p. 308. The intervenors, therefore, having no claim to the merсhandize in the hands of the garnishees, at the date of the service of the attachment in this case, it was, consequently, the property of the defendants, subject to their control, and liable to be seized for the payment of their debts. Wilson v. Lizardi,
An acсount in the record shows the net sales of the property in the hands of the garnishees, to have bеen $999 21, and less than its estimation in their answers to interrogatories.
It is, therefore, ordered, adjudged and dеcreed, that the judgment of the lower court be annulled, avoided and reversed, and that there be judgment against defendants for $2262, with interest from judicial decree and with privilege on property attаched ; and that the plaintiffs recover of the garnishees, Betterton & Co., the sum of nine hundred and ninety-nine dollars and twеnty-one cents, the proceeds of the merchandize, and the further sum of two hundred and eighty-three dollars and twenty cents, the amount of debt acknowledged to be in part payment of said debt; and that appellees pay the costs of this appeal, and the petition of intervention be dismissed at the costs of the intervenors.