Hamburger v. Marcus. Corr's Appeal

• Decision Date: 02 October 1893
• Docket Number: 311
• Citation: 27 A. 681,157 Pa. 133
• Parties: Hamberger v. Marcus. Corr's Appeal
• Court: Pennsylvania Supreme Court

27 A. 681

157 Pa. 133

Hamberger v. Marcus. Corr's Appeal

No. 311

Supreme Court of Pennsylvania

October 2, 1893

Argued April 3, 1893

Appeal, No. 311, Jan. T., 1893, by garnishee, Bernard Corr from judgment of C.P. No. 3, Phila. Co., March T., 1892, No 15, on verdict for plaintiff, Philip Hamberger, in case of Philip Hamberger v. Julius Marcus.

Rule for judgment against garnishee on answers in foreign attachment.

The material answers to the interrogatories were as follows:

"I have had no transactions with defendant, Marcus, saving that I have employed him from time to time to sell for me liquors. These liquors he has sold, and, as his compensation for his services in making such sales from time to time, become entitled to certain moneys.

"The amount of his sales appears in the following statement. This statement shows the quantity of liquor sold by him for me, the dates of such sales and the amount of commissions earned: [Items from Dec. 18, 1891, to July 19, 1892.]

"I refuse to state to whom said sales were made, as this would disclose not only the names of my customers, but the prices at which I sell, to a rival in business. I am advised by counsel, and therefore aver, that I cannot in this proceeding be required to give such information.

"I have from time to time paid to said Marcus the whole of the commissions earned by him for his services in selling for me, saving the sum of $125. This amount still remains in my hands, I having refused to pay him his compensation for the liquor sold on the 18th December, 1891, until the present attachment was disposed of.

"I have had no other dealing of any sort or kind with said Marcus.

"I have been notified by said Marcus that the moneys due to him for his personal services in making said sales are not attachable, and that if they are, he claims the benefit of the exemption act, allowing him $300.

"All the above commissions were earned by said Marcus as his compensation for his own personal services in making sales for me of my goods."

Rule for judgment absolute. Garnishee appealed.

Error assigned was entry of judgment.

Judgment reversed and procedendo awarded.

John G. Johnson, for appellant. -- Defendant was in garnishee's employ: Act of April 15, 1845, P.L. 460; Smith v. Brooke, 49 Pa. 147; Costello v. Coal Co., 33 Pa. 241; Wentroth's Ap., 3 W.N. 248.

The amount of commissions earned was "salary," within the meaning of the act of April 15, 1845: Heebner v. Chave, 5 Pa. 115; Seider's Ap., 46 Pa. 57; Hutchinson v. Gormley, 48 Pa. 270; Com. v. Butler, 99 Pa. 535; Sweeny v. Hunter, 145 Pa. 363. They were within the words and spirit of the act of 1845, and were not attachable: Adam's Ap., 47 Pa. 94.

The act of 1845 extends to foreign attachments: Firmstone v. Mack, 49 Pa. 387; Catlin v. Ensign, 29 Pa. 264; Sweeny v. Hunter, 145 Pa. 363; Matson v. Bryan, 26 W.N. 248.

Samuel M. Hyneman, for appellee. -- The commissions were neither wages nor salary: Com. v. Butler, 99 Pa. 535.

The nature and character of defendant's employment by appellant were not such as were contemplated by the act of April 15, 1845.

The authorities cited by appellant are not applicable to the facts in this case, as defendant cannot possibly be regarded as a laborer.

Smith v. Brooke, 49 Pa. 147, was a case of a master carpenter engaged in building a house for the owner, who employed laborers under him as his helpers. He actually performed manual labor, and, as far as his compensation was involved, it was free from attachment.

In Costello v. Coal Co., 33 Pa. 241, the miner who contracted to mine coal with the assistance of a helper for so much a ton, actually did part of the mining and performed actual manual labor.

Wentroth's Ap., 3 W.N. 248, raised the question of a lien for wages under the act of 1872. The moneys due to Snyder, who had contracted to deliver to Wolf all the timber cut down upon a certain tract for a certain price per thousand feet, were held not to be a lein, it having been shown by the evidence that he did no manual work himself.

Seider's Ap., 46 Pa. 57, was a case which arose upon the construction of the act of April 2, 1849, relative to preference given to laborer's wages. The only question in this case was whether the wages of colaborers were to be preferred claims.

The decision in Hutchinson v. Gormley, 48 Pa. 270, which held that the fees of a gauger of oil for Allegheny county were not subject to attachment, was based not upon the construction of the words wages or salary, but was decided upon an entirely different principle, to wit, that a public officer shall not be obstructed in the performance of public duties by individual creditors: Heebner v. Chave, 5 Pa. 115; Penna. Coal Co. v. Costello, 33 Pa. 241; Smith v. Brooke, 49 Pa. 147; Wentroth's Ap., 3 W.N. 48; Schwaake v. Langton, 6 W.N. 124.

Before STERRETT, C.J., GREEN, WILLIAMS, McCOLLUM, MITCHELL, DEAN and THOMPSON, JJ.

OPINION

MR. JUSTICE McCOLLUM:

This is an appeal from a judgment entered against a garnishee in a suit commenced by a writ of foreign attachment. The judgment was entered on the answers of the garnishee to the interrogatories filed. It is contended by the garnishee that the debt due from him to the defendant is not liable to attachment. It appears from his answers that he employed the defendant from time to time to sell liquors and allowed him for his services commissions on the sales; that when the attachment was served he was entitled to commissions amounting to the sum of $125, and during the next seven months he earned and was paid commissions amounting to the sum of $399.78. The judgment includes the commissions earned and paid after, as well as the commissions earned and unpaid when, the attachment was served. The answers therefore present, prima facie, a case in which a creditor is seeking to appropriate in satisfaction of his claim the commissions due from an employer to his employee. These commissions constitute the compensation of the employee for personal services performed for his employer under an agreement between them. Are they liable to attachment? It is provided in section 5 of the act of April 15, 1845, P.L. 460 "that the wages of any laborer or the salary of any person in public or private employment shall not be liable to attachment in the hands of the employer." It was the obvious purpose of this act to enable laborers and persons in public or private employment to receive from their employers compensation for their personal services without hindrance from their creditors. The miner who is paid by the ton, the mechanic who is paid by the piece, and the clerk or salesman who is paid by commissions on his sales, are as much within its protection as if they were paid by the day, week, month or year. A wholesale merchant employs two persons to travel over the country and obtain from the retail dealers orders for his goods; to one of them he pays a certain sum per month and to the other he pays commissions on the amount of orders taken. These commissions are as clearly compensation of the employee for personal services in the interest and for the benefit of the employer as the monthly stipend is. It is a narrow construction of the statute which allows the creditors of one employee to attach in the hands of the employer the commissions which constitute his compensation for personal services and exempts from attachment in the hands of the same employer the compensation of another employee for like services. A construction which admits of such results is not warranted by a mere difference in the method of compensation. In Wentroth's Appeal, 3 W.N. 248, the question was whether the claimant was a laborer within the meaning of the act of April 9, 1872, P.L. 47, and this court said: "If he was a laborer it must be conceded that it does not matter in what manner his services were to be compensated -- whether by daily wages or by the quantity of lumber delivered." In Seider's Appeal, 46 Pa. 57,...