Royer v. Fleming

• Decision Date: 31 October 1874
• Citation: 58 Mo. 438
• Parties: AMOS ROYER, et al., Respondents, v. JOHN FLEMING, et al., Garnishees of SMITH, et al., Appellants.
• Court: Missouri Supreme Court

58 Mo. 438

AMOS ROYER, et al., Respondents,

v.JOHN FLEMING, et al., Garnishees of SMITH, et al., Appellants.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Schuyler Circuit Court.

A. J. Bader with Hughes & Hughes, for Appellants.

McColdrick & Caywood with Edw. Higbee, for Respondents.VORIES, Judge, delivered the opinion of the court.

In November, 1871, the plaintiffs commenced a suit in the Schuyler Circuit Court, against Patrick Smith and John Smith, to recover the amount of a demand against them for the sum of $408.88. An attachment was issued in said suit, upon which the defendants in this proceeding were garnished as the debtors of said defendants, Smith and Smith. The garnishment was served on the 28th day of November, 1871. Interrogatories were properly filed at the return term of the writ. It is admitted by the parties, that the plaintiffs prosecuted their suit against Smith and Smith to final judgment, in which they recovered the amount of the demand sued for.

The garnishees, Fleming and McCarthy, appeared to the garnishment, and filed an answer to the interrogatories filed by plaintiffs, in which they denied their indebtedness to Smith and Smith in any sum, or on any account whatever.

The plaintiffs filed a denial of the answer of the garnishees, and charged that the said Fleming and McCarthy were indebted to Smith and Smith at the time of the service of the garnishment, in the sum of one thousand dollars for work and labor performed in grading, grubbing and clearing done by said Smith and Smith, under a contract with said garnishees for the grading, etc., for a section of the Missouri, Iowa and Nebraska Railroad, in the county of Schuyler.

The said garnishees, Fleming and McCarthy, filed their replication to said denial of plaintiffs, in which they admitted, that said Smith and Smith were sub-contractors under them, and, as such, were engaged in grading and constructing the line of the Missouri, Iowa and Nebraska Railway; but they aver that said Smith and Smith performed the work performed by them, in grading and constructing the road bed for said railway, under a special contract to perform the whole of the work on section 59 of said road, and have the same completed in a manner and at a time named in said contract, and for prices therein set forth. The said defendants then aver that after said Smith and Smith had partly performed said work, they abandoned the same and never complied with their contract, and that the defendants were put to great trouble and expense in completing said work. The defendants then averred that they had fully paid said Smith and Smith, and were compelled to pay the laborers employed by said Smith and Smith, and who performed work in grading said road under said Smith and Smith, for all work performed by said Smith and Smith under their contract, setting out all the particulars of the payments made by them, in which it is shown that Smith and Smith had performed work under said contract, amounting to about three thousand dollars, all of which, it was averred, had been fully paid, setting forth the particular payments, etc. The defendants then averred, that they did not owe said Smiths on said contract or otherwise at the time of the service of the garnishment, any sum or amount whatever.

Upon the issues, thus presented, the case was tried in the Circuit Court by a jury. Evidence was introduced on the part of the plaintiffs which tended to prove that Smith and Smith had done work for the defendants to the value or amount of over three thousand dollars, and that defendants were still indebted to Smith and Smith for work done in the sum of several hundred dollars. The evidence on the part of the defendants strongly tends to prove that Smith and Smith had not complied with their contract in grading the section of the road contracted for, and that they had been paid and over-paid all that they were entitled to receive by virtue of their contract for the work done.

The defendants then offered to prove, that Wesley Farrell and Ebenezer Birney had, prior to the service of the garnishment in this case, garnished defendants as being indebted to said Smith and Smith in the sum of $430. The court refused to admit said evidence and the defendants excepted.

At the close of the evidence, the court, at the request of the plaintiffs, instructed the jury as follows: “If the jury believe that Fleming and McCarthy reserved at the several monthly payments the 15 per cent. reserve, then said F. and McC. are not entitled to receive a credit for work subsequently done by F. and McC., or on account of the right to reserve said 15 per cent.” This instruction was objected to by the defendants and exceptions saved.

The defendants then moved the court to instruct the jury as follows: “1st. The court instructs the jury that Farrell and Birney have garnished defendants for the sum of $434, and in making up their verdict they will allow defendants a credit for said amount with interest, at the rate of six per cent. per annum, from the 18th day of January, 1873, up to date.” “2nd. If the jury believe, from the evidence, that Henry Shaw was the engineer in charge of the work on said section 59, then, by the terms of the written contract read in evidence, he was the agent of Smith and Smith, and also of Fleming and McCarthy, and that his final estimate as to the entire amount of work done in completing said section, is conclusive upon both parties.” “3d. If the jury believe from the evidence that the laborers on the road filed claims against the Missouri, Iowa and Nebraska Railway Co., for the last thirty days' labor, and obtained judgment on the same against the company, then Fleming and McCarthy were bound to pay off said judgments, and are entitled to a credit equal to the amount of said judgments, notwithstanding they compromised the same at fifty cents on the dollar.”

These instructions were each and all refused by the court, and the defendants excepted.

The court then, of its own motion, gave the jury the following instructions which were objected to by the defendants. “3rd. If they find Fleming and McCarthy, in their monthly payments, paid to Smith and Smith's laborers the amount due Smith and Smith, less the amount of demands against said laborers in favor of merchants with whom above laborers dealt, and less the amount of Fleming and McCarthy's account against Smith and Smith for goods and merchandise, then they owed to Smith and Smith the balance, after deducting the amounts of Fleming and McCarthy's account against Smith and Smith, and it devolves upon them to show that Smith and Smith have been paid that balance;...