54 Kan. 124 | Kan. | 1894
The opinion of the court was delivered by
This controversy arises upon the garnishment of a fund derived from a loan upon real estate, and which was set apart for the specific purpose of constructing a building on such real estate. I). W. Aaron, who was the owner of a lot in the city of Wichita, applied to the Equitable Trust & Investment Company for a loan of $8,000, in which application he represented that he was the owner of the property, and that there were no liens or claims against it. The application was accepted, and an agreement was made by which Aaron was to construct a three-story stone and brick building upon the lot, according to certain plans and specifications provided by J. H. Lynch, an architect. It was further provided that the building was to be constructed under the direction of Lynch and to his satisfaction, the company agreeing to loan $8,000 on a first mortgage, and the amount of the loan was to be paid out as the work progressed; that is, 50 per cent, of the value of the materials furnished and work done was to be paid out in that way, and the remaining 50 per cent, upon the completion and acceptance of the entire work, after the expiration of 15 days. It was further agreed by the parties, that the 50 per cent, reserved should be held by the investment company as security for the faithful completion of the work, to be applied under the direction of the superintendent in liquidation of any damages which the former might sustain. Afterward, Aaron and wife executed and delivered a promissory note for $8,000 and a mortgage upon the property to secure the same. Before any money was paid out upon the loan, Aaron and his wife executed an assignment in writing of the money derived from the loan, as follows:
“June 12, 1889. — Pay to J. H. Lynch or order the full*126 amount due us on the loan negotiated by us, and this shall be your receipt therefor. D. W. Aaron,
Manda C. Aaron.
“ To the Equitable Trust & Investment Company, Wichita, Kas,”
This order of assignment was accepted by the investment company on the day of its date. The construction of the building was commenced about June 15, 1889, and was not completed until some time in December, 1889. Aaron was indebted to the Rock Island Lumber & Manufacturing Company in the sum of $2,000 upon a promissory note, and on September 25, 1889, an action was brought by that company against him to recover the amount of the debt. Upon the same day an affidavit for garnishment was filed, by which the plaintiff’ sought to charge the investment company and J. H. Lynch as garnishees, and subject a portion of the building fund to the payment of its debt. Each of the garnishees answered, denying the allegations of the affidavits, and that there was any indebtedness to Aaron. Issue was taken upon their answers, and upon a trial had in January, 1890, judgment was rendered in favor of the garnishees and they were discharged. On November 23, 1889, the plaintiff recovered a judgment against Aaron without controversy in the sum of $2,045. After the plaintiff was defeated in the first proceeding in garnishment, other affidavits were filed against the investment company and J. H. Lynch, seeking to charge them as garnishees for money and property of Aaron’s alleged to be in their possession. In due time both parties answered, denying the affidavits for garnishment of the plaintiff, and upon these answers iásue was taken and another trial had, in which the court found in favor of the plaintiff and against the Equitable Trust & Investment Company for the sum of $105, and its costs since the 4th day of January, 1890, and also for an attorney’s fee of $25. Judgment was also given against Lynch for $500, and costs since January 4, 1890, and also for an attorney’s fee of $25. The plaintiff was not satisfied with the recovery and brings the case here, alleging numerous errors.