17 Nev. 141 | Nev. | 1882
•By the Court,
In the year 1878 one E. C. Hardesty sold and conveyed to
■ Subsequently E. CL Hardesty made an assignment of' his. interest in the agreement to the plaintiffs, and they have-brought this action to recover damages- from, the defendant for his failure to deliver to them the portion of the crops, to- which, they claim to be- entitled under the assignment.
Defendant justifies his- refusal upon the- ground that in an. attachment suit, commenced by Charles. Adams, against E. C. Hardesty, the interest of the said E. C. in the agreement was. attached by notice of garnishment served upon the defendant.
At the time of the service-of the notice, to-wit: December, 16-, 1879, there had been delivered to E. C. Hardesty the* proportion of the crops, to which he was then entitled, and the-defendant had no property in his possession or under his. control belonging to him. The garnishment related to the crops, to be-thereafter raised.
The rights of the plaintiffs attached subsequently to the-service of the notice, and prior to an execution sale of the-contract to Adams, the judgment creditor.
The controlling question in the case is whether any rights, were acquired by Adams by virtue of the proceedings in attachment; if none were acquired, plaintiffs succeeded to the interest of E. C. Hardesty in the contract, and the judgment of the district court in their favor ought not to be disturbed ^
The statute touching garnishments provides as. follows :. “ Upon receiving information in writing from the plaintiff or his attorney that any person has in his possession or under his. control any credits or other personal property belonging to the-defendant or is owing any debt to the defendant, the sheriff shall serve upon such person a copy of the writ and a notice that such credits or other property or debts, as the case may be, are attached in pursuance of such writ.” “All persons having in their possession or under their control any credits, or other personal property belonging to the defendant, or owing any debts to the defendant at the time of the service
At the time of the service of the notice and copy of the writ there was nó actually existing debt between E. C. Hardesty and the defendant, and whether such a debt would ever exist depended upon all of the contingencies attending farming.
It has frequently been decided that debts not actualfy due or owing, but depending on a contingency, cannot be reached by garnishment.
Thus in an early case in Massachusetts it was sought to garnish the wages of a sailor, which were payable upon the completion of the voyage upon which he was then embarked. On the part of the trustee it was admitted that wages certainly payable, although at a future day, could be reached by attachment, but it was claimed that as payment depended upon the contingency of the vessel’s arrival, he was not chargeable. The court so held, declaring that “every debt must be either solvendum in praesenti or solvendum in futuro; must be certainly, and in all events, payable; but whenever it is uncertain whether anything will ever be demandable by virtue of the contract, it cannot be called a debt.” (Wentworth v. Whittemore, 1 Mass. 472.)
To shippers of a cargo under a contract that the owners of a ship should receive a share of the profits arising on the cargo were held not liable as trustees before the termination of the voyage.
The court said: “At the time of the service of this writ the ship had not completed her voyage; she might have- foundered or she might have brought the goods to a bad market, so that there would have been no profits. What was this at that time, if any debt at all, but a contingent one?” (Davis v. Ham, 3 Mass. 34.)
The same court, in Guild v. Holbrook, 11 Pick. 101, held that a person holding real estate upon a promise to sell it and pay over the proceeds was. not liable as trustee in a process of foreign attachment, it being' contingent whether he- would ever sell the property and receive the proceeds.
(See also: Williams v. Manston, 3 Pick, 65; Grant v. Shaw, 16 Mass. 342; Wilson v. Wood, 34 Me. 123; Burke v. Whitcomb, 13 Vt. 421; Maduel v. Mousseaux, 29 La. Ann. 228; Haven v. Wentworth, 2 N. H. 93.)
These decisions show that a garnishee cannot be charged whenever it is uncertain whether any property of the debtor will come to his hands, or whether he will ever he indebted t.o the debtor.
The crops for the years, succeeding* the service of the notice of garnishment, from famine, or other natural causes, or from artificial causes, might never have been produced. This uncertainty exempted defendant from, liability as a garnishee.
Other questions are presented, hut the views adopted by the .court present an insuperable objection to the defendant’s, recovery, and render their consideration unnecessary.
Judgment affirmed.
