| W. Va. | Mar 2, 1874
The plaintiff having brought suit against M. Healey & Co., sued out, on the first day of December, 1871, from the clerk’s office of the circuit court of Fayette county, an order of attachment, requiring the sheriff of Kanawha county to attach and take into his possession the estate of the defendants, sufficient to pay the sum of $300, and' the costs of suit. On this order, the plaintiff designated, by his endorsments, the Chesapeake and Ohio Railroad Company as a party indebted to, or having in its possession, the effects of the defendants, M. Healey & Co. And a summons was directed to said Company to appear before the judge of the circuit court of Fayette county, and disclose, on oath, in what sum it is indebted to said defendants, and what effects of said defendants it has in its hands.
This order of attachment and summons were served on said Railroad Company, by delivering a copy thereof to H. Chester Parsons, one of the directors of said Company, on the 8th day of December, 1871. In May, 1872, the Railroad Company tendered its answer, alleging that the said Company was not, at the time of the service of said order of attachment, nor has said Company at any time since said service, been indebted to the defendant in this cause, or had in its possession or control', any goods, chattels, money, securities or other effects, belonging to the said defendants.' To the filing of this answer, the
By consent of parties, this suit was transferred to the circuit court of Kanawha county. At a term of said court, held in June, 1873, the plaintiff and the garnishee came, by their attorneys, and neither- party desiring a jury, by consent, the court in lieu of a jury, proceeded to try the issue joined upon the answer of said garnishee, and the suggestion made upon the record, by the plaintiff, and having heard all the evidence, the court found the issue for the plaintiff, and that at the- time the attachment was served upon the, garnishee,, it had in its possession, funds of the defendants, M. Healey & Co., liable to said attachment, sufficient to discharge the plaintiff’s judgment; and thereupon, the said garnishee moved the court to set aside the said finding, and award a new trial, upon the ground that the same was contrary to the law and evidence; which motion was overruled by the court. And thereupon, the court proceeded to render judgment against the said garnishee for the sum of $282.01, with interest and costs, and $15, statute fee allowed by law. And thereupon the garnishee, the Chesapeake and Ohio Bail road Company, tendered a bill of exceptions, .which is signed and made a part of the record, and setting forth all the evidence in the case. From this judgment an appeal is taken to this Court.
Is there error in this judgment, as seen from an examination of the evidence, and under the law, is the question now submitted for determination here. The fifth section of chapter one hundred and six of the Code prescribes how an attachment may be levied, and that any person designated, “as being indebted' to, or having in his possession, the effects-of the defendant,” maybe summoned
Under this last section, the court, (a jury being waived,) proceeded to make the inquiry therein directed, to-wit: as to such “debts and effects.”
Looking now at the evidence on the part of the plaintiff, we find that the plaintiff introduces the. depositions of two witnesses, Nicholas Mason and Jonn C. Ruby, who prove that certain claims or accounts due to them from M. Healey. & Co.,, the defendants, were paid to them by Cabell Breckenridge, on the 20th day of January, 1871, which payments were thus made about twelve days after the service of the attachment on the garnishee. "While it appears that said Breckenridge was a resident engineer on the work of the garnishee, it is not shown that he made these payments as the disbursing agent of the Company, or under its authority, or by its direction; and especially, it does not appear that.he made these payments out of any moneys or funds recognized or admitted by the Company to be in its hands, as due and owing to the defendants, M. Healey & Co. On the contrary, any presumption to this effect is repelled by a statement made in a letter of said Breckenridge, dated on the 12th day of December, 1871, and addressed to the counsel of the plaintiff: he says, “you are mistaken in supposing that this company considers itself liable for the debts of the firm of M. Healey & Co., formerly contractors on section one hundred and twenty-one.” This letter then proceeds further to indicate how the money
Qn the part of the garnishee, the deposition of Cabell Breckenridge is introduced, who says that Healy & Co. abandoned their work on 15th of November, 1871; had executed no release for their final estimate ; 'that if they had complied with their contract, there would have been due them something under $1,000 that the Company had tried to re-let the work. An extract from the contract between the garnishee and M. Healy & Co. is also introduced, and the witness Breckenridge says that if Healy & Co. had complied with this contract, there would have been due them something under $1,000. The evidence does not show of what this sum of little less than $1,000 consists, nor is the fact very material; we infer, however, from the terms of the contract, and the evidence, that it consists of the amount reserved by the company upon the monthly estimates, and the value of the work done from the firstto the fifteenth of November. The contract contains the following provisions in substance : that on or about the first day of each month, during the progress of the work, an estimate shall be made of the value of the work done, and ninety per cent, thereof (if the amount due on said estimate shall exceed $300) paid to the contractor, and upon the completion of the entire work a final estimate shall be made, and the balance appearing due shall be paid to the contractor, upon his giving a release to the company from all claims or demands growing in any manner out of the agreement; that if the contractor shall fail to pay the wages of the laborers for any month, that the engineer
A fundamental principle is, that an attaching creditor can acquire no greater right in attached property than the defendant had at the time of the attachment. If, therefore, the property be in such a situation that the defendant has lost his power over it, or has not yet acquired such interest in or power over it, as to permit him to dispose of it adversely to others, it cannot be attached for his debt. Drake on Attachment, section 245 and cases there cited. Again the debt from the garnishee to the defendant, in respect of which it is sought to charge the former, must, moreover, be absolutely payable, at present, or in future, and not dependent on any contingency. If the contract between the parties be of such a nature, that it is uncertain and contingent, whether anything will ever be due, in virtue of it, it will not give rise to such a credit, as may be attached; for that cannot proj)erly be called a debt, which is not certainly, and at all events, pajmble, either at the present, or some future period. So, where a contract existed between the garnishee and the defendant, by which the defendant
In the contract under consideration here, it is provided, that if the contractor fail in performing the stipulations of the agreement, on his part, in the particulars therein stated, the Company may proceed to do the work, and charge over the amount to the contractor; or, through its engineer, declare the contract abandoned, and the same shall thereby become void, and, and the reserved per centage of ten per cent, upon any work, <fec., or as much thereof, as in the judgment of the chief engineer will be necessary for the complete indemnity of the Company, may be forever retained by said Company. Such in substance are the provisions of the contract here, and as there is [no evidence in the record showing that the same has ever been declared abandoned by the Company^ and rendered void in any way, it was a subsisting contract between the parties at the time of the service of the attachment. Consequently it was then uncertain and dependent upon the future action of the Company, under
The subsequent voluntary course of the Company, in paying certain debts of the defendants cannot change the legal effect of the attachment, in giving it a force, which it did not have at the time of the service.
There is still another view of this proceeding. The contract provides-that monthly estimates shall be made about the first of each • month, during the progress of the work, of the value of the work done, of which ninety per cent, shall be paid to the contractor, leaving ten per cent, in the hands of the Company, and upon th£ completion of the entire work, a final estimate should be made, and the balance appearing- due paid to the contractor, upon his giving a release to the Company from all claims or demands growing out of the agreement.
In the case of Hennessy v. Farrell, 4 Cush. (Mass.) 267, a railroad contract contained a similar provision, so far as the making of monthly estimates, and the retaining of a certain amount, and the making of a final estimate upon the completion of the entire work, with that con-
As to the one quarter part of the nominal amount earned in former months, (referring to the reserved amounts,) it Avas payable only upon the completion of the entire Avork contracted to be done, and as this never Avas done, this quarter part, therefore, never became a debt due, Avhich ought to be charged by the “trustee process.” Applying these views to the case in hand, there was nothing' earned by the defendants for the work done in the month of November, and the reserved monthly per cent-age remaining in the hands of the Company, never became a debt which could be charged under the attachment.-
We have carefully endeavored to consider the suggestion of counsel, that the garnishee in this case, is estop-ped from setting up defence to this order of attachment. We have failed to see, hoAvever, in the evidence, any act of the Company, Avhich misled the plaintiff to his prejudice, or caused him to Avaive, to any extent, his rights under the process taken. The Company Avas informed by the plaintiff through his counsel, on the third day after the service of the process of attachment, by a letter addressed to its agent, that he would “release the same and dismiss the suit, when the debt and costs of said suit were paid, but not otherAvise.” The Company has done nothing to induce him to pursue a different course. We
For these reasons, the judgment rendered against the Chesepeake and Ohio Railroad Company, on the 16th day of June, 1873, is set aside and reserved, with costs to the appellant, and this Court proceeding to render such judgment as the court below ought to have rendered, doth adjudge and order, that the Chesapeake and Ohio Railroad Company, be discharged from all claim or liability to the plaintiff, Samuel Strauss, by reason of the order of attachment in the proceedings mentioned, and recover from said plaintiff his costs in the circuit court expended, and that this order be certified to the circuit court of Kanawha county.
Judgment Reversed.