Colman v. Scott

• Decision Date: 27 June 1889
• Parties: COLMAN v. SCOTT.
• Court: Nebraska Supreme Court

27 Neb. 77

42 N.W. 896

COLMAN

v.SCOTT.

Supreme Court of Nebraska.

June 27, 1889.

Syllabus by the Court.

1. An attaching creditor has no greater rights against the garnishee than were possessed by the defendant in the action, therefore, where a debt has been assigned in good faith for a valuable consideration before the notice to the garnishee, the assignor will be protected; and if after a garnishee has answered, and before judgment he is notified by the assignee of the assignment of the claim to him before the service of notice, the garnishee should at once bring the matter to the attention of the court by filing a supplemental answer. A garnishee who, before answer, has notice that the defendant in the action had assigned the debt to another before the notice of garnishment was served, must state that fact in his answer, to be protected from an action by the assignee of the debt.

2. Where the controlling facts in a case do not sustain the judgment, it will be set aside.

Error from district court, Buffalo county; HARNER, Judge.A. H. Connor, John M. Stewart, and Colman & Colman, for plaintiff in error.

Marston & Nevins, for defendant in error.

MAXWELL, J.

This action was brought in the district court of Buffalo county to foreclose a mechanic's lien. On the trial of the cause, the court found the issues in favor of the defendant, and dismissed the action. The plaintiff alleges in his petition that, “on or about the 5th day of July, A. D. 1887, the said plaintiff entered into a verbal contract with the said defendant to furnish him 97,785 bricks, at the agreed price of $7 per 1,000, for the erection of a brick business house on lots numbered 115 and 116, Kearney Junction, now the city of Kearney. In pursuance of said contract, the said plaintiff furnished said brick to the defendant, for the erection of said business house, on and between the 5th day of July, 1887, and the 16th day of July, 1887, for the sum of $7 per 1,000, amounting in the aggregate to the sum of $684.49. The said plaintiff further says the said defendant, at the time the plaintiff furnished said brick, claimed to be the owner in fee of said lots numbered 115 and 116. The said plaintiff further says said brick were sold and delivered to the said defendant after the representation and statement of the said defendant to the said plaintiff that he was the owner in fee of said lots, and with the understanding and belief, on the part of the said plaintiff, that the said defendant, at the said time, was the owner in fee of said lots, and not otherwise. The said plaintiff further says the said defendant is the owner in fee of said lots, but alleges the fact to be that the deed records of said county do not disclose that fact, for the reason that the said defendant fails and refuses to place on record his deeds to said lots. The said plaintiff further says, on the 11th day of August, 1887, and within four months from the time of furnishing said brick, he, the said plaintiff, made an account in writing of the items or number of said brick so furnished the said defendant under said contract, and, after making oath thereto as required by law, filed the same in the clerk's office of Buffalo county, and claiming a mechanic's lien therefor upon said lots, and the building thereon. The said plaintiff further says the sum of $684.49, together with interest from the 16th day of July, 1887, now remains due and unpaid on said account.”

The answer consists of a number of specific denials. The testimony tends to show that one Samuel Colman, a son of the plaintiff, had, for several years prior to 1887, been engaged in the manufacture of brick at the city of Kearney; that, from time to time, his father had assisted him financially, the whole amount loaned to the time of the trial being in excess of $1,800; that early in June, 1887, Samuel Colman had a large kiln of brick ready to burn, but, not having means to purchase the necessary fuel, he applied to the plaintiff, who furnished the necessary money for that purpose, but took a chattel mortgage on the kiln to secure the amount owing by Samuel Colman to him. This mortgage is dated June 25, 1887, and was filed for record on the same day. While this mortgage was upon the brick, the defendant purchased 97,784 of the same from Samuel Colman. The latter claims he sold the same as agent for the plaintiff, but the defendant alleges that he sold the same as owner. The plaintiff and one Hoge testify that they informed the defendant, soon after the execution of the mortgage, of its existence, and that the price of the brick which he had purchased from Samuel Colman was to be deposited in the Kearney National Bank for the plaintiff. This the defendant denies on his direct examination, but on cross-examination he testifies: “ Question. Do you remember of Mr. Hoge coming to you, and reading a letter to you? Answer. I remember seeing him there with a letter, but I paid no attention to him because he annoyed me so much. Q. Did you tell him you would never have anything more to do with Sam Colman? A. I told him I would have nothing more to do with bricks until they were burned. Q. Did you pay for any coal that burned the kiln in question? A. I don't know. I did not go responsible for any more coal. Q. Did Mr. Hoge say to you why he wanted you to pay the draft? A. I don't know, only he wanted to know particularly whether I had paid it or not. He was interested in my purchasing the kiln of brick so he could get his claim. Q. When was the first conversation you had with Mr. Hoge? A. Before they were burned. Q. How many conversations did you have with...