Drake v. Leighton

• Decision Date: 01 June 1887
• Citation: 33 N.W. 81,69 Wis. 99
• Parties: DRAKE v. LEIGHTON AND ANOTHER, AND OTHERS, GARNISHEES.
• Court: Wisconsin Supreme Court

69 Wis. 99

33 N.W. 81

DRAKE

v.LEIGHTON AND ANOTHER, AND OTHERS, GARNISHEES.

Supreme Court of Wisconsin.

June 1, 1887.

Appeal from circuit court, Jefferson county.

George W. Bird, for respondent.

F. B. Van Valkenburgh, for appellants.

TAYLOR, J.

The material facts in this case are the following: On the twenty-seventh day of September, 1881, the respondent recovered a judgment against the above-named defendants, J. M. Leighton and A. D. McDonald, in the circuit court of Jefferson county, for the sum of $2,105.50 damages and costs. This judgment was docketed on the same day by the clerk of said court under the letter “L” against “Leighton, J. M., and A. D. McDonald,” and the judgment was never docketed against the said McDonald under the letter “M.” An execution was issued out of said court, in due form of law, upon said judgment, on the twenty-eighth day of November, 1885, directed to the sheriff of said county of Jefferson. After issuing said execution, and before the return thereof, an affidavit was made on behalf of the plaintiff in said judgment, in the form prescribed in section 2735, Rev. St. A garnishee summons was issued upon such affidavit against the appellants as garnishees, which was served on the said appellants on the same day. Afterwards, and within 20 days, the garnishee defendants made and served the answer required by section 2759, Rev. St., denying all indebtedness or liability to the defendants, Leighton and McDonald, or to either of them, and denying that they had in their possession, or under their control, any property, real or personal, effects or credits of any description, belonging to the said defendants, or either of them; and thereupon the plaintiff served notice that he chose to take issue on the answer of the garnishees, and that he would maintain them to be liable as garnishees. This case was afterwards brought to trial upon the issue so made; and, against the objection of the garnishees, the issues in the case were tried by a jury.

Upon the trial the following facts appeared: (1) A written contract made between the garnishees and the defendant A. D. McDonald was offered in evidence. This contract was dated on the twenty-fourth day of August, 1885. The contract was for doing all the work on the line of the Chicago, Wisconsin & Minnesota Railroad, from station zero, at the outskirts of Chicago, for a distance of 28 miles west. The only matters in such contract which have any material bearing upon the questions involved in this case are the following: There are the following stipulations in said contract in regard to the manner in which the garnishees should pay the money which should become due said McDonald for his work under the same: “It is further agreed by the party of the first part that, during the progress of the work, an estimate shall be made on or about the first of each month of the materials furnished and the labor performed under this contract, and that payments shall be made by said first parties upon the estimate, and certificate of the engineer on the work, on or about the fifteenth day of each month, for the amount and value of the work done and materials furnished in structures during the previous month; but fifteen per cent. of the amount of each estimate shall be deducted and retained by the said first parties until the completion of the work embraced in and covered by this contract: provided, that within thirty days after the engineer shall certify that the said work is fully performed, and after the final estimate and certificate of completion by the engineer shall have been determined and delivered to the first parties, all sums due the parties of the second part shall be fully paid, and this contract shall thereafter be, and be considered to be, determined. It is mutually agreed and understood by the parties hereto that said parties of the first part [meaning the garnishees] shall have the right to pay the money, or any portion thereof, due under this contract, for labor performed or materials furnished, to the persons actually performing the labor or furnishing the materials, respectively, whenever after the same are payable; and said payments are hereby expressly authorized by the second parties to be made, and shall be considered as payments hereunder, as fully as though made to said second parties directly; and said parties of the second part also agree, whenever so required, to furnish to the parties of the first part a full and complete statement of all liabilities incurred on account of work herein contracted for, which are outstanding and unpaid.” The words “second parties” used in said contract must be taken to mean A. D. McDonald alone, as he was the only person who signed the contract as second party. There is also a provision in the contract that, if the second party fails to perform the contract according to its terms, he shall forfeit all right to the 15 per cent. reserved as provided above.

The evidence in the case shows that the work was commenced under the contract immediately after its date, and was not completed until about the first of January, 1886. It also shows that the garnishee summons was served on the appellants on the twenty-eighth day of November. It further shows that all the work done and materials furnished under the contract, previous to the first day of November, had been paid for by the garnishees previous to the said twenty-eighth day of November; that when the summons was served no estimate of the work done and materials furnished by McDonald during November had been made, but it was admitted on the trial that the value of the work done and materials furnished by McDonald under the contract,previous to the twenty-eighth of November, and which had not been paid for, exceeded the sum of $4,000. Before the trial the plaintiff took the depositions of Green, one of the garnishee defendants, and to the 116th interrogatory, which reads as follows: “Now, it appears by this account, Mr. Green, that you have paid nearly $11,000 on the contract since the garnishee process was served. Answer. We had paid nothing to A. D. McDonald & Co. [Our contract with the railroad company compels us to pay the laborers for all the work done on the road which we have done.]” The part inclosed in the brackets was stricken out on motion of the plaintiff, and the defendants duly excepted. Answers of a similar character to the 132d and 135th interrogatories were also stricken out on motion of the plaintiff, and exceptions taken. The defendants offered in evidence a contract they had made with Colby and Pinney for the building of the road, which McDonald had contracted with them to construct under his contract given in evidence. This was objected to by the plaintiff, and ruled out by the court. The defendants, at the time of offering the contract, stated the object was to show what contract Harrison and Green were working under at the time they employed McDonald; and they proposed to show, in connection with that, the fact that McDonald was familiar with that contract, and understood the conditions of it, and his was made similar to it, with the understanding that he was as responsible as they were. Exception was taken to this ruling by the defendants.

The garnishee Green testified on the trial as follows: “After the garnishee notice was served on us, we paid the money directly to the laborors who did the work, in currency, by our pay-master. We paid the workmen as their work became due. Question. But the amount which appears to have been earned and unpaid on the twenty-eighth of November,--when was that paid? Answer. In December. It was paid out on the pay-rolls made out by McDonald or his book-keeper; I don't know which it was. They were furnished us by McDonald. These payments were made on the line, mostly to the men who were then working there. The payments were made with the assent or request of McDonald.” Considerable evidence was given on the subject of paying the men who did the work, after the garnishee notice was served; but, under the instructions given by the court to the jury, these payments were held to be no defense to the claim of the plaintiff against the garnishees, unless it was further shown that the garnishees had personally employed the men who did the work for McDonald under his contract, and became personally bound to each laborer to pay the amount of his wages.

The learned judge instructed the jury as follows: “If you find that there was no agreement made by Harrison and Green with the workmen, or any of them, on and prior to November 28, 1885, and prior to the time of the service of the garnishee summonses upon them, to pay them their wages, then you must answer the second and third questions, ‘No.’ If Harrison and Green paid the $4,000 to workmen with whom they had not, on or before November 28, 1885, made an agreement to pay them, or some of them, their wages, then you must answer the second and third questions negatively. You must answer the second and third questions negatively, unless you find that Harrison and Green not only made an agreement with the workmen before November 28, 1885, to pay them their wages, but that they also paid the $4,000 to the men with whom they had made that agreement. If they paid it to other men, with whom they had no such arrangement, then you must answer the second and third questions negatively. The burden of proof is upon the garnishee defendants to establish, by a preponderance of the evidence, that they did make such agreement with the workmen on or before November 28, 1885, when the garnishee summons was served on them; and if the garnishee defendants have failed to establish the making of such an agreement by the preponderance of the evidence, then you must answer the second and third questions negatively.”

It is very clear, from the whole charge of the learned judge, that he was of the opinion, and so repeatedly instructed the jury, that the garnishees had no...