Brower & Thompson Lumber Co. v. Miller

• Decision Date: 03 February 1896
• Citation: 28 Or. 565,43 P. 659
• Parties: BROWER & THOMPSON LUMBER CO. v. MILLER et al. (HAMILTON et al., Garnishee).
• Court: Oregon Supreme Court

43 P. 659

28 Or. 565

BROWER & THOMPSON LUMBER CO. v. MILLER et al. (HAMILTON et al., Garnishee).

Supreme Court of Oregon

February 3, 1896

Appeal from circuit court, Multnomah county; H. Hurley, Judge.

Action by Brower & Thompson Lumber Company against Miller &amp Giddings, defendants, and Hamilton & Howard, garnishees. There was a judgment dismissing the garnishment proceeding and plaintiff appeals. Reversed.

This case is here on appeal from a judgment in proceedings against garnishees. On May 5, 1894, plaintiff commenced an action against Miller & Giddings, and recovered a judgment therein for $328.59. When the action was commenced, a writ of attachment was issued, and Hamilton & Howard were served with garnishee process, to which they first made answer that they were indebted to Miller & Giddings in the sum of $249.80, but afterwards amended their certificate so as to show an indebtedness of 62 cents only. The amended certificate being unsatisfactory, the plaintiff had Hamilton & Howard cited to appear before the court, and their answers to the allegations and interrogatories served upon them disclose the status of their indebtedness which it was sought to reach by the garnishment. We state the facts out of which the indebtedness arose from the garnishees' standpoint, as their sufficiency is tested by exceptions which form the basis of the judgment appealed from. It seems that one J.D. Wickliff having entered into a contract with the city of Portland to make certain street improvements, and to furnish the labor and materials therefor, executed to the city a bond, with B.S. Reilly and George W. Bower as a sureties conditioned that he should well and faithfully perform all the stipulations of the contract. On the same day, Wickliff, for the consideration of five dollars, assigned the contract to Hamilton & Howard. Concerning these transactions it is alleged: "That, although said bond appears to have been given by J.D. Wickliff, said contract had in fact already been assigned to these garnishees. They had succeeded to all the rights and privileges of said Wickliff under said contract, and had assumed all the liabilities and responsibilities thereunder. That said B.S. Reilly and George W. Bower signed said bond as sureties for these garnishees and not for said Wickliff. That, at the time said contract was assigned, it was understood and agreed by and between the parties to said assignment that these garnishees should stand in all respects as the original contractors for said street improvement; that said Wickliff should have no further interest in said contract; that he should be relieved of all liability thereunder; and that all rights and claims thereunder should accrue to these garnishees; and that these garnishees should be responsible for all liabilities or responsibilities arising thereunder." The contract contains the stipulation required by the ordinances of the city of Portland, as follows: "That said party of the first part [Wickliff] shall, within ninety days after completion of the work herein agreed to be performed, pay all sums of money due at the completion of said work, or thereafter to become due, for materials used in and labor performed on or in connection with said work." Hamilton & Howard let to Miller & Giddings a subcontract for furnishing the nails and labor requisite for carrying out said contract with the city, one-half the contract price to be paid in cash, and the other half in city warrants. Miller & Giddings furnished nails and labor of the value of $988.64, all of which Hamilton & Howard paid except $249.80. That S.D. Powell furnished nails of the value of $114.80, at the request of Miller & Giddings, for use in the completion of said contract. That Henry Aschenbrenner, John Kruger, and Fred Hyde performed labor for them, for which they claimed $51.46, $7.99, and $34.03, respectively, and that each of said individuals made demand of Hamilton & Howard for the amount due him for such nails and labor, and claims a right to recover against them directly under and by virtue of the original contract with the city of Portland. Under this state of facts, the garnishees claimed that they were responsible to these several individuals in the various sums demanded, and not to Miller & Giddings. The court dismissed the proceeding, and rendered judgment against plaintiff for costs, from which plaintiff appeals.

R.R. Duniway, for appellant.

G.C. Moser, for respondents.

WOLVERTON J. (after stating the facts).

We presume that, if Powell, Aschenbrenner, Kruger, and Hyde have each an action directly against the garnishees upon their several demands, the fact that such rights of action exist would constitute a good defense to an action by Miller & Giddings against the garnishees; and, if good against Miller & Giddings, it would also constitute a sufficient defense under the garnishee process.

It is intimated, but not strongly insisted upon, that Wickliff's bond to the city forms a sufficient basis upon which actions by Powell and others against the garnishees may be founded, but this cannot be so for two reasons: First Hamilton & Howard are not parties to the bond, and an action based thereon could not go against them; and, second, it is settled by Parker v. Jeffery, 26 Or. 186, 37 P. 712, that they have no action upon the bond even as against Wickliff. In that case, which was an action upon a similar bond, given in pursuance of the same ordinances, a party had furnished materials directly to the contractor, and it was held that the bond furnished him no remedy. It is stoutly contended, however, that Hamilton & Howard's liability to Powell and others is established by the clause in the contract wherein it is "further stipulated and agreed on behalf of the party of the first part that said party of the first part shall, within ninety days after the completion of the work herein agreed to be performed, pay all sums of money due at the completion of said work, or thereafter to become due, for materials used in, and labor performed on or in connection with, said work," upon the doctrine, as asserted generally by...