Singer Sewing Mach. Co. v. Southern Grocery Co.

• Decision Date: 11 April 1907
• Docket Number: 211.
• Citation: 59 S.E. 473,2 Ga.App. 545
• Parties: SINGER SEWING MACH. CO. v. SOUTHERN GROCERY CO.
• Court: Georgia Court of Appeals

59 S.E. 473

2 Ga.App. 545

SINGER SEWING MACH. CO. v. SOUTHERN GROCERY CO.

No. 211.

Court of Appeals of Georgia

April 11, 1907

Syllabus by the Court.

The situation which the garnishing plaintiff occupies in respect to the garnishee can be no better than that which the defendant himself occupies in respect to the garnishee. If the defendant himself, suing the garnishee, could not get a judgment against him, the garnishing plaintiff cannot get a judgment against the garnishee. The creditor may stand in his debtor's shoes by means of garnishment, but he gains no additional privileges.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24 Garnishment, §§ 21-24.]

The act of 1901 (Acts 1901, p. 55), creating a lien on all future indebtedness of the garnishee to the defendant accruing up to the date of the answer, was only intended to keep garnishees from evading the law. For the reasons stated in the first headnote, it is not intended to restrain the right of parties to contract.

[Ed Note.-For cases in point, see Cent. Dig. vol. 24 Garnishment, §§ 231-233.]

Consequently, in a case where it appeared by the undisputed evidence that, under a contract operative more than a year before an attachment was sued out, the defendant sold sewing machines for the garnishee, and that the contract relations were that the defendant used his own horse and wagon, paid his own taxes and expenses, and deducted his commissions before remitting the weekly balances, not being indebted or responsible to the garnishee for any proceeds of the sale except the portion due by the contract, the garnishee was not at any time indebted to such debtor, and was not subject to process of garnishment. Consequently, where a judgment was rendered against such garnishee, and exception was taken thereto by certiorari, to dismiss such certiorari was error.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 24, Garnishment, §§ 21-24.]

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by the Southern Grocery Company against one Johnson; the Singer Sewing Machine Company, garnishee. From a judgment dismissing a writ of certiorari, the garnishee brings error. Reversed.

Stubbs & Chapman and Hooper Alexander, for plaintiff in error.

Wilson & Rogers, for defendant in error.

RUSSELL J.

Exception is taken to the dismissal of a certiorari. The Southern Grocery Company sued out attachment against Johnson, who resided in South Carolina, and served a garnishment on the Singer Sewing Machine Company. The latter answered not indebted, and the former traversed the answer. On the trial of the traverse the justice held that the garnishee was liable, and on certiorari the presiding judge agreed with him and dismissed the certiorari.

The defendant in attachment sold sewing machines in South Carolina for the plaintiff in error under a contract which was executed and had been operative more than a year before the attachment was sued out. The contract relations between Johnson and the Singer Company were as follows: The company shipped machines to him, and he used his own horse and wagon, paid his own taxes and expenses, leased and sold the machines for cash and on credit at prices fixed by the company and made weekly reports to the company on blanks furnished by it to him. For his services he was entitled under the contract to two commissions: (1) A selling commission of 25 per cent. of every machine sold. If a cash sale, he took out his 25 per cent., and with this weekly report sent the balance to the Savannah office. The company never saw or handled the money, but by virtue of the contract Johnson retained it. If a credit sale, he retained all the money he collected until he had his 25 per cent. The balance he sent to the company as its share of the transaction. (2) A remitting commission of 25 per cent. of such part as he might collect of the company's 75 per cent. of the proceeds of his leases and sales, which was due to him one week after he had remitted his collections for the week, e. g., if on Saturday, February 16th, he reported that he had collected $10 for the company, he sent it, less his commission for the preceding week, with his report, and on the 23d he was entitled under his contract to take out 25 per cent., or $2.50, from that week's collections before making his remittance to the company. Copies of all of Johnson's reports for the period claimed to be affected by the garnishment appear in the record. His selling commissions from the date of the service of the summons to the date of answer, over six weeks, amounted to $23. This never passed out of Johnson's hands, but he retained it by right of his contract. Under the evidence his remitting commission amounted to $14.13 made up of six items for the six weeks, varying in amounts from 51 cents to a few dollars. His contract allowed, and the evidence showed, that at the end of the week, when he made up his report, he took out of the amount collected his commission for the previous week, and sent to the company the difference, so that as a matter of fact the company never did handle any of the defendant's money. It kept no books, had no charges for or against him, and paid him no salary.

1. From the above correct summary of the evidence we are satisfied that the certiorari should not have been overruled, for by no construction of the contract could it be said that the company owed the defendant more than the amount of the remitting commission, viz., $14.13. We are of opinion that no judgment should have been rendered against the company. We have endeavored to declare the intentions of the Legislature in the passage of the act of 1901, in Mut. Res. Ins. Co. v Fowler (this day decided) 59 S.E. 469. The garnishment law was not intended to restrain the right of parties to contract. The act was only intended to keep men from evading the...