Carpenter v. Gay

CourtUnited States State Supreme Court of Rhode Island
Writing for the CourtMATTESON, J.
Citation12 R.I. 306
Decision Date01 March 1879
PartiesCLARENCE H. CARPENTER AND FRANK F. CARPENTER, Copartners, v. JOHN GAY.

12 R.I. 306

CLARENCE H. CARPENTER AND FRANK F. CARPENTER, Copartners,
v.

JOHN GAY.

Supreme Court of Rhode Island.

March 1, 1879


A person making the statutory affidavit cannot be charged by garnishment unless the principal debtor has a cause of action against him.

Hence where M. contracted with G. to build a house and was to receive certain sums at certain stages of the work and the balance of the contract price at its completion; it appearing that M. had received all moneys due under the contract up to the time of suit brought, that he had then abandoned the work and that G. had claims against him for the violation of the contract:

Held, that M. had no right of action against G. for the excess of the contract price over the amounts paid him by G. and G.'s claims against him.

Held, further, that G. was not liable as the garnishee of M.

CASE against the defendant as garnishee. Heard by the court, jury trial being waived.

Where a building contract provides for the successive payments as work progresses, the builder cannot, after voluntarily abandoning the work, recover in excess of the prescribed payments, in an action on a quantum meruit for work done.

Elisha C. Mowry, for plaintiffs.

A. & A. D. Payne, for defendant.

MATTESON, J.

The plaintiffs sue to recover money which they claim to have attached in the hands of the defendant as the trustee of one John McBain. The plaintiffs brought suit on the 26th of January, 1876, in the Court of Common Pleas for the county of Providence, against McBain, and on the following day caused the writ to be served upon the defendant for the purpose of attaching the personal estate of McBain in the hands of the defendant as his trustee. At the December term, 1877, of the Court of Common Pleas, the plaintiffs obtained judgment against McBain for $2,200 and the costs of the suit. The defendant made affidavit in the suit against McBain, in which he denied that he had any estate or property of McBain in his hands or possession, at the time of the service of the writ upon him. The plaintiffs filed interrogatories to the defendant, and his answers to these disclose the following facts: McBain made a contract with the defendant, dated September 9, 1875, by which he agreed to furnish the materials for and to build a house for the defendant, according to certain plans and specifications, which was to be completed by the 16th day of February, 1876. The price of the house was to be $6,400, $1,000 of which was to be paid when the house was raised and boarded, $700 when it was lathed, $600 when it was plastered and dry, $1,500 on the 18th of January, 1876, and $500 when the house was completed, at which time the defendant was also to give to McBain his...

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12 practice notes
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...recover the reasonable value of the work performed. (Barkstrom v. Ryan, 122 N.Y.S. 878; Clark v. Smith, 14 Johns. 326; Carpenter v. Gray, 12 R. I. 306; Ginther v. Schultz, 40 O. St. 104; Kennelly v. Walker, 107 N.Y.S. 95; Marshall v. Jones, 11 Me. 54; Maxwell v. Moore, 50 So. 882; Oakley v.......
  • Battjes Fuel & Bldg. Material Co. v. Milanowski, No. 56.
    • United States
    • Supreme Court of Michigan
    • December 8, 1926
    ...the garnishee than the principal debtor would be, if himself suing the garnishee. Waldron v. Wilcox, 13 R. I. 519, 520; Carpenter v. Gay, 12 R. I. 306, 307; Smith v. Millett, 11 R. I. 528, 534, 535. It follows that, as the defendant Collins could not alone have maintained his suit on the co......
  • Allen v. Gerard
    • United States
    • United States State Supreme Court of Rhode Island
    • November 6, 1899
    ...rule is that, in order to charge a person as garnishee, the principal debtor must have a cause of action against him. Carpenter v. Gay, 12 R.I. 306; Waldron v. Wilcox, 13 R.I. 518; Tucker v. Pollock, 21 R.I. —, 43 Atl. 369. Money in the registry of a court is wholly under the control of tha......
  • H. A. Grimwood Co. v. Capitol Hill Bldg. & Const. Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • June 16, 1906
    ...suit brought by him against the garnishee. Brown v. Collins, 18 R. I. 242, 27 Atl. 329; Waldron v. Wilcox, 13 R. I. 518; Carpenter v. Gay, 12 R. I. 306; Smith v. Millett, 11 R. I. 528. In the case at bar no facts were alleged or proved other than those stated by the garnishee in his affidav......
  • Request a trial to view additional results
12 cases
  • Evans v. Cheyenne Cement, Stone & Brick Company, 673
    • United States
    • United States State Supreme Court of Wyoming
    • March 24, 1913
    ...recover the reasonable value of the work performed. (Barkstrom v. Ryan, 122 N.Y.S. 878; Clark v. Smith, 14 Johns. 326; Carpenter v. Gray, 12 R. I. 306; Ginther v. Schultz, 40 O. St. 104; Kennelly v. Walker, 107 N.Y.S. 95; Marshall v. Jones, 11 Me. 54; Maxwell v. Moore, 50 So. 882; Oakley v.......
  • Battjes Fuel & Bldg. Material Co. v. Milanowski, No. 56.
    • United States
    • Supreme Court of Michigan
    • December 8, 1926
    ...the garnishee than the principal debtor would be, if himself suing the garnishee. Waldron v. Wilcox, 13 R. I. 519, 520; Carpenter v. Gay, 12 R. I. 306, 307; Smith v. Millett, 11 R. I. 528, 534, 535. It follows that, as the defendant Collins could not alone have maintained his suit on the co......
  • Allen v. Gerard
    • United States
    • United States State Supreme Court of Rhode Island
    • November 6, 1899
    ...rule is that, in order to charge a person as garnishee, the principal debtor must have a cause of action against him. Carpenter v. Gay, 12 R.I. 306; Waldron v. Wilcox, 13 R.I. 518; Tucker v. Pollock, 21 R.I. —, 43 Atl. 369. Money in the registry of a court is wholly under the control of tha......
  • H. A. Grimwood Co. v. Capitol Hill Bldg. & Const. Co.
    • United States
    • United States State Supreme Court of Rhode Island
    • June 16, 1906
    ...suit brought by him against the garnishee. Brown v. Collins, 18 R. I. 242, 27 Atl. 329; Waldron v. Wilcox, 13 R. I. 518; Carpenter v. Gay, 12 R. I. 306; Smith v. Millett, 11 R. I. 528. In the case at bar no facts were alleged or proved other than those stated by the garnishee in his affidav......
  • Request a trial to view additional results

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