38 Mo. 545 | Mo. | 1866
delivered the opinion of the court.
The appellant was summoned as garnishee of one Henry
“ St. Louis, Mo., November 16, 18601 Due Henry Bucking one thousand dollars in brandy at live dollars per gallon. We will let him have one or two barrels of fine whiskey on the above amount. This is for commissions. O. H. Tyler & Co.”
The due-bill was endorsed, and there was an interplea filed, but the issue was found against the claimant; and as it has no material bearing on the question raised by the record, it will not be further noticed.
Upon a trial before the court, a jury being waved, no evidence was given that a demand was ever made for the brandy mentioned in the due-bill; but there was evidence tending to show that the appellant had the brandy, and had always been ready and willing to deliver the same when legally demanded or called for. The court decided that a special demand for the delivery of the brandy previous to the service of the garnishment was not necessary, and then rendered judgment against the garnishee for the amount in money.
Notes for the payment of money, absolutely on demand, require no specific demand; the commencement of a suit is a sufficient demand. But the rule is otherwise with respect to notes payable in specific articles, where no day or place of payment is mentioned, or are not fixed by some clear and certain implication of law. Thus, where the note was payable in farm produce on demand, and neither time nor place of payment was specified, it was held that before an action could be maintained a specific demand should have been made at the farm of the debtor — Lobdell v. Hopkins, 5 Cow. 516. Where a party has agreed or obligated himself to pay in specific articles, he cannot be charged or proceeded against as for a money debt till demand is made, and there is a refusal or neglect on his part to perform the contract; for until then he is in no default, and he has a right to insist on the terms of his agreement. And, on obvious principles,
An attaching creditor only acquires such rights against the garnishee as the debtor possessed,, and no process or proceedings can place the garnishee in a different or worse position than he would have occupied if sued directly by the debtor in the attachment suit.
The payee in the note or due-bill could not have sustained his suit, and obtained a money judgment, without having made a prior demand and met with a refusal on the part of the payer to deliver the brandy, and the attaching creditor cannot pretend to stand in any more favorable attitude— Drake on Attach. § 550; Bartlett v. Wood, 82 Vt. 372; Stadler v. Parmlee, 14 Iowa, 175; Minns v. Parker, 1 Ala. 421; Wrigley v. Geyer, 4 Mass. 102; McMinn v. Hall, 2 Tenn. 328; Smith v. Chapman, 6 Porter, 365; Willard v. Butler, 14 Pick. 550; Blackburn v. Davidson, 7 B. Mon. 101.
The judgment will be reversed and the cause remanded.
