Heege v. Fruin

• Decision Date: 02 June 1885
• Citation: 18 Mo.App. 139
• Parties: T. HEEGE, Appellant, v. JERE FRUIN ET AL. Respondents.
• Court: Missouri Court of Appeals

18 Mo.App. 139

T. HEEGE, Appellant,

v.JERE FRUIN ET AL. Respondents.

St. Louis Court of Appeals, Missouri.

Jun. 2, 1885.

APPEAL from the St. Louis County Circuit Court, EDWARDS, J.

Affirmed.

W. S. BODLEY, for the appellant.

M. F. TAYLOR, for the respondents.

LEWIS, P. J., delivered the opinion of the court.

The defendants were contractors with the Missouri Pacific Railway company for the construction of a second track from Laclede to Kirkwood. J. N. Niday was a sub-contractor under them for a part of the work. The plaintiff sued Niday by attachment for an indebtedness of $755.94, and summoned the present defendants as garnishees. Issues upon the alleged indebtedness of the defendants to Niday were submitted to a jury, who gave their verdict for the defendants.

There was testimony tending to prove that the garnishees had received from the company on account of the work done by Niday, the sum of $3,297.38, and had paid out to laborers and employes upon the same work, $3,616.05. These payments were made a few days after the service of the garnishment process. The vital question brought up by this appeal will appear from the following instruction, given by the court below:

“Under the contracts read in evidence the defendants had the authority to pay off and discharge any claim for labor or materials done or furnished to said Niday, in doing the work under said contract, before being liable to either Niday or the plaintiff; and if the jurors believe and find from the evidence that defendants have paid out on account of such labor and materials a sum equal to or in excess of the amount due to said Niday, on account of such work as he may have done under said contract, then the verdict will be for the defendants, even though the jurors may believe and find from the evidence that such payments, as so made by defendants, were after the service of garnishment process. In this case the jurors are instructed that defendants, under the terms of their contract with Niday, were not confined to such claims as could be made the subject matter of a lien against the road-bed of the Missouri Pacific Railway Company.”

The contracts to which the instruction refers were: One between the defendants, as parties of the first part, and the railway company, as party of the second part, and another between Niday, as party of the first part, and the defendants, as parties of the second part. Each of these contracts contained a provision in the following words: “It is further mutually agreed between the parties hereto, that the party of the second part, if at any time they see fit so to do, may pay the bills for labor, or supplies, or any part thereof, contracted by said party of the first part, in the prosecution of the work embraced in this agreement, to the parties to whom they may be due, and deduct the amount so paid from the monthly or final estimates as so much cash paid thereon, but nothing herein contained shall be construed as an assumption by said party of the second part of any liability for any such bills for labor or supplies, unless said party of the second part so elect, it being wholly optional with them.”

The plaintiff insists that, notwithstanding these contract provisions, the garnishees could not exonerate themselves by any payments, except upon claims which were enforceable by liens upon the work. But it is too late to question the doctrine that “no process can place...