Baltimore & O. R. Co. v. Wheeler

• Decision Date: 06 June 1862
• Citation: 18 Md. 372
• Parties: BALTIMORE & OHIO RAIL ROAD COMPANY, Garnishee of CENTRAL & OHIO RAIL ROAD COMPANY, v. GEORGE M. WHEELER and others.
• Court: Maryland Court of Appeals

18 Md. 372

BALTIMORE & OHIO RAIL ROAD COMPANY, Garnishee of CENTRAL & OHIO RAIL ROAD COMPANY, v. GEORGE M. WHEELER and others.

Court of Appeals of Maryland.

June 6, 1862

A garnishee's liability for a defendant's property in his hands, is determined ordinarily by his accountability to the defendant for the property and if by any pre-existing bona fide contract that accountability has been removed, or modified, the garnishee's liability is correspondingly affected.

Garnishment cannot have the effect of changing the nature of a contract between the garnishee and the defendant, or of preventing the garnishee from performing a contract with a third person; any other doctrine would lead to mischievous results.

Where the rights and credits attached depend upon mutual accounts between the garnishee and the defendant, the relation of debtor and creditor turns upon the terms and conditions on which their transactions were conducted.

A contract anterior to an attachment, bona fide, and for good consideration, between two railroad companies, whose roads connected and a system of through fare and freight established, that each should receive and advance for the other, the balances between them to be settled monthly, controls the attachment, and such contract may be implied or inferred, by, or from, a course of mutual dealing.

APPEAL from the Superior Court of Baltimore City.

Attachment on warrant, issued July 23rd, 1856, by the appellees, to affect the credits, & c., of the Central Ohio Railroad Company, and laid the next day in the hands of the Baltimore & Ohio Railroad Company, which appeared and pleaded nulla bona, and the case was tried October 6th, 1858.

Exception: The claim of the plaintiffs, (citizens of Massachusetts,) on three acceptances, amounting to $3,502.61 was admitted. It was also admitted, that the defendant, the Central Ohio Railroad Company, is a non-resident incorporation, incorporated by the laws of Ohio, and that paper O, furnished by the garnishee in response to the plaintiffs' interrogatories, truly represents the entire account between the garnishee and the defendant, between the periods embraced in the accounts therein stated. These accounts commence July 1st, 1856, and end September 8th, 1858, and appear to be settled monthly, the balances being always in favor of the garnishee, made up in part of cash advanced from time to time by the garnishee to the defendant. They further show, that when the attachment was laid, $49,411.87 were due the garnishee, and the latter received on account of the defendant, during that month, (July 1856,) $34,118.11, carried to the credit of the defendant on the last day of that month, and on the 31st of August there is carried to the credit of the defendant $38,760.53, making for the two months a credit of $72,878.64, and that the total of such credits, from the date of the attachment to the day of trial, amounted to over $800,000, but the balances as before stated, were always against the defendant, and the final balance against it is $82,095.93. The garnishee offered the evidence, stated in the opinion of this court. The plaintiffs offered three prayers:

1st. If the jury find that the garnishee received on account of the defendant, the sum shown by the account produced, more than enough to pay the debt owing by the defendant to the garnishee at the date of the attachment laid, as shown by said account, and more than sufficient to pay the plaintiffs' claim, then it is the garnishee's right to apply the sums so received, to the payment in the first place of its own debt, due when the attachment was laid, and the balance is in the next place applicable to the plaintiffs' claim, and they are entitled to a verdict against the garnishee for the amount thereof.

2nd. If the jury find the facts stated in the preceding prayer, and further, that the garnishee after the attachment was laid in its hands, paid over to the defendant large sums received by it, for the defendant, more than sufficient to pay the debt due by the defendant to the garnishee, at the time the attachment was laid, as shown by said account, and more than sufficient to pay the plaintiffs' claim, then the plaintiffs are entitled to a verdict for the amount thereof.

3rd. That the account between the garnishee and the defendant, given in evidence, shows that the garnishee has money or credits of the defendant more than sufficient to pay the plaintiffs' claim, and the plaintiffs are entitled to a verdict for the amount thereof.

These prayers, the court (LEE, J.) refused. The garnishee then offered the prayer stated in the opinion of this court, which the court refused, and gave the instruction also set forth in the opinion of this court. The garnishee excepted to the refusal to grant its prayer, and to the instruction granted by the court. The verdict was in favor of the plaintiffs for the amount of their claim, and from the judgment of condemnation thereon, the garnishee appealed.

The cause was argued before BOWIE, C. J., BARTOL, GOLDSBOROUGH and COCHRAN, J.

J. M. Campbell, for the appellant.

1st. To show that there was a particular and uniform course of dealing between the two companies, for the whole period covered by the attachment, the monthly accounts between them were offered in evidence. From a glance at these accounts, it appears there is a continually recurring entry on both sides, of " " freight and charges," and to explain this, which forms the great bulk of the account on either side, the garnishee offered in evidence, that the two roads meeting at the Ohio river, were used for through trade and travel, and that each receiving freight due the other, as well as itself, there were mutual accounts to be settled between them, for the receipts of each on the others behalf. With this explanation of a single, but constantly repeated item, the accounts show, that at the time the attachment was laid, the garnishee was in advance to and a creditor of defendant, for $49,411,87, and that every monthly settlement thereafter, down to the end of the account, the balance of the account was in favor of the garnishee. There never, consequently, was any thing in the garnishee's hands to sustain the verdict, if the course of dealing between it and the defendant is correctly set out in the accounts. But the express admission is, that the account truly represents the transactions between the parties. Now what does the account show? That the accounts were settled, and the balance ascertained, monthly. What further? That during each month, notwithstanding the balance was constantly against the defendant, it had the right to advances from the garnishee, on account of the latter's receipts of freight and charges for the defendant. Modus et conventio vincunt legem. The parties made a law for themselves by their mutual course of dealing, and the plaintiffs coming in under one of them, are bound by the acts of that one, and must submit to the terms established by both. 1 How., 239, Bank of Metropolis, vs. New England Bank. The court below were therefore in error, in refusing the garnishee's prayer, which made the course of dealing between the parties, if found by the jury, the test of their rights and obligations inter se, and by consequence of the plaintiffs' claim which could only be founded thereon.

2nd. But the court's instruction was also erroneous. Coupling this instruction with the refusal of the garnishee's prayer, how could the jury do other than assume, that the course of dealing between the parties was no evidence of such a contract, or agreement, as the instruction contemplated? But even if they were not so misled, the instruction was radically vicious. They were not told that such an agreement might be implied, and were necessarily shut up, therefore, to find an express agreement. It is not easy to say, to what period the word, " former," refers, and what is the meaning of the words, " " appropriate the same." The burthen of proof, moreover, was not on the garnishee: the affirmative of the issue was on the plaintiffs, and as the evidence of receipts was not of receipts by themselves, but of receipts in an account which embraced charges on both sides, it was incumbent on the plaintiffs to show, that the counter charges did not affect their claim on the receipts.

F. W. Brune, for the appellees.

1st. The prayers presented by the appellees should have been granted. The account is admitted to be correct, and after payment of the garnishee, shows credits much more than sufficient to pay the plaintiffs' claim, for which the garnishee was, therefore, clearly liable, according to the principles of our attachment laws.

2nd. The appellant's prayer was properly rejected. No course of dealing between garnishee and defendant can prevent the operation of an attachment on credits which come into the hands of a garnishee, because all credits in the hands of a garnishee up to the date of the verdict, are liable to attachment, and not merely a balance of account, and because such a construction would entirely defeat the operation of the...