Vollmer v. Chicago & Northwestern Railway Co.

86 Wis. 305 | Wis. | 1893

Cassoday, J.

The statute declares, in effect, that as often as any contractor for the construction of any railroad or part thereof in process of construction shall be indebted to any laborer for thirty days’ labor or less, either manual or team labor or both, including team and driver, performed in constructing such road, such laborer may, within thirty days after the claim or demand of such laborer shall have accrued, serve notice in writing thereof on the corporation as therein designated; “ and thereupon such corporation shall be directly liable to such laborer for the amount so due him, provided he bring his action therefor within sixty ■days after the service of such notice.” Sec. 1815, S. & B. Ann. Stats, (ch. 318, Laws of 1881). This statute was manifestly intended to make the company absolutely liable, at least to the aggregate amount of the contract price, to such laborers as should serve their notices and commence their actions, respectively, within the times mentioned and as therein designated. Drake v. Harrison, 69 Wis. 99, 2 Am. St. Rep. 117; Sterling v. Ryan, 72 Wis. 36, 7 Am. St. Rep. 818; French v. Langdon, 76 Wis. 29. Any payments made to such laborers so serving such notices necessarily operated as payments pro tanto to Wolf, and hence the company was directly interested in the payment of such laborers. The company, therefore, had the right to withhold so much of its indebtedness to Wolf as was necessary to pay such laborers so serving such notices; and the company cannot, without its consent, express or implied, be deprived of such right, either by the act of Wolf, or by garnishment in a suit against him. Drake v. Harrison, 69 Wis. 99. Wolf’s right to recover the whole amount of such indebtedness, therefore, was not absolute, but depended upon contingencies. This court has repeatedly held, in effect, that a garnishee is not liable, as such, for property, moneys, credits,' or effects in his possession or under his control, belonging to the principal defendant, unless the right of the principal .defendant thereto is absolute at the time oi the service of the garnishee process. Sec. 2768, R. S.; Foster v. Singer, 69 Wis. 392; Edwards v. Roepke, 74 Wis. 575. Where, as, here, therefore, the amount of the indebtedness which the garnishee is ultimately liable to pay to the principal defendant depends upon contingencies, such garnishee can only be held liable for so much as shall remain due to such principal defendant upon the determination of such contingencies. Ibid. Here it is conceded that there is a considerable amount for which the company is so liable. The plaintiff, however, was unwilling to accept judgment for that amount, but appeals from an order refusing judgment for the whole amount. Of course, the plaintiff' is entitled to judgment for so much as the company was indebted to Wolf upon the determination of such contingencies. The case is unlike those cited by counsel, under statutes which freed the owner from liability to subcontractors in case he had paid the principal contractor before receiving notice from the subcontractor.

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