Mundt v. Shabow

120 Wis. 303 | Wis. | 1904

SiebeckeR, J.

Was the garnishee, Shabow, indebted to-Meidam, the judgment debtor, or had he property in his possession or under his control belonging to Meidam, when the garnishment process was served? The facts are practically undisputed. It appears from the finding of the trial court that the garnishee defendant, Shabow, and John Meidam made an oral agreement whereby Meidam agreed to build a house for Shabow for the sum of $1,005; that this sum was to be payment in full for all matérial and labor required to complete the building; that Shabow was to pay for the labor and material as the work progressed upon the order and direction of Meidam, and, if any sum remained due on this contract above the amount paid for labor and material, Mei-dam was to receive it. The bouse was not completed until about September 1, 1900. The court held that tbe garnishee sustained no liability to the judgment creditor on this contract at the time the garnishment was served. The contract made between the parties required complete performance on the part of Meidam before any sum was due him, and Sha-bow owed nothing on the contract - June 20th, except such amounts as he had obligated himself to pay for labor and material. While the house remained unfinished, no ground of liability in Meidam’s favor existed. This court has repeatedly held that a garnishee is not liable unless it appears that he is absolutely liable to the principal defendant when the garnishment is served. The “debts due or to become due”' under sec. 2768, Stats. 1898, relate to such as the garnishee owes absolutely, and have been construed to cover debts which are an absolute liability, though payable at some future date. Smith v. Davis, 1 Wis. 447; Bishop v. Young, 17 Wis. 46; Foster v. Singer, 69 Wis. 392, 34 N. W. 395; Vollmer v. O. & N. W. R. Co. 86 Wis. 305, 56 N. W. 919; Evans v. Rector, 107 Wis. 286, 83 N. W. 292. The contract between Meidam and Shabow must be held to be an entirety, and when the garnishment was served there was nothing absolutely due nor a liability payable at some future time.

By the Court. — The judgment of the circuit court is affirmed.