Louis Obert Brewing Co. v. Wabash R. Co.

• Decision Date: 06 June 1910
• Citation: 129 S.W. 991,145 Mo. App. 30
• Parties: LOUIS OBERT BREWING CO. v. WABASH R. CO.
• Court: Missouri Court of Appeals

129 S.W. 991

145 Mo. App. 30

LOUIS OBERT BREWING CO. v. WABASH R. CO.

Springfield Court of Appeals, Missouri.

June 6, 1910.

Rehearing Denied July 7, 1910.

1. GARNISHMENT (§ 105)—RIGHTS OF EXECUTION CREDITOR.

In garnishment, the execution creditor acquires no greater right against the garnishee than was held by the principal debtor; and where the latter could not sue the garnishee, the execution creditor cannot, and the garnishee must be discharged.

2. GUARANTY (§ 14)—CONSIDERATION.

A railroad company, through its foreman, verbally guaranteeing the payment to a boarding house keeper of the board of men under the foreman, followed by the practice of the railroad to withhold enough of the wages of the men to pay their board, and to pay the same direct to the boarding house keeper, was not bound by contract to pay the board of its men because of want of consideration for its promise.

3. FRAUDS, STATUTE OF (§ 17)—ANSWER FOR THE DEBT OF ANOTHER.

A verbal guaranty by a railroad, through its foreman, to pay to a boarding house keeper the board of its men, if a contract, is one to answer for the debt of another, and is void under the statute of frauds.

Appeal from St. Louis Circuit Court, Virgil Rule, Judge.

Garnishment proceedings by the Louis Obert Brewing Company against the Wabash Railroad Company, as garnishee. From a judgment for the garnishee, plaintiff appeals. Transferred from the St. Louis Court of Appeals. Affirmed.

Johnson & Gillespie and W. H. Douglass, for appellant. N. S. Brown and Walter N. Davis, for respondent.

COX, J.

The plaintiff obtained judgment against Henry & Herman Albers for $700. On this judgment execution was issued, and the Wabash Railroad summoned as garnishee. The garnishee answered denying owing any debt to Albers. Issue was taken on this denial, and trial had before the court, resulting in the discharge of the garnishee, and plaintiff has appealed.

The evidence tends to show that Albers had been running a boarding house, at which employés of the railroad company boarded, and that the foreman of the company, under whom these men worked had said to Albers that the company would guarantee the payment of the board bill of its employés; that for some time it had been the practice of the railroad company to withhold enough of the wages of its employés to pay their board and to pay it direct to Albers. When the garnishment was served upon the railroad company it had not paid the board of its employés for the last month,...