Sundberg v. Boeing Airplane Co.
| Decision Date | 07 August 1958 |
| Docket Number | No. 34517,34517 |
| Citation | 52 Wn.2d 734,328 P.2d 692 |
| Parties | Oscar SUNDBERG, Thor Sundberg, and Carl Sundberg, a copartnership doing business as Oscar Sundberg and Sons, Plaintiffs, v. BOEING AIRPLANE COMPANY, a corporation, and American Surety Company of New York, a corporation, Respondents, F. B. Tilley, doing business as Ace Appliance Company, Appellant. |
| Court | Washington Supreme Court |
Felix & Abel, Don G. Abel, Seattle, for appellant.
Wright, Booth & Beresford, Lewis L. Stedman, Seattle, for respondents.
The parties involved in this proceeding are Oscar Sundberg and Sons, a copartnership, the Boeing Airplane Company, the American Surety Company of New York, and F. B. Tilley, doing business as Ace Appliance Company. They will hereafter be referred to as Sundberg, Boeing, the surety, and Tilley, respectively.
The facts relevant to this appeal are as follows:
February 8, 1955, Sundberg entered into an extensive painting contract with Boeing. As required by the contract, he deposited a performance and a payment bond, both of which were issued by the surety.
July 7, 1955, Tilley commenced an action against Sundberg to recover for rental of his vacuum cleaner equipment used in the painting contract, and for damages resulting from the negligent use thereof. Ancillary thereto, a writ of garnishment was served upon Boeing. The amended answer to the writ of garnishment alleged that no sum was due and owing Sundberg. Thereafter, an injunction was entered, enjoining the enforcement of the writ. Tilley's cause proceeded to trial, and, on March 14, 1956, judgment was entered only against Sundberg.
July 15, 1955, Sundberg defaulted on the paint contract, and assigned his rights thereto the surety. The surety completed the Sundberg contract, and its performance thereof was accepted by Boeing prior to the date of the Tilley judgment.
December 23, 1955, an action was commenced by Sundberg against Boeing for the balance owing udner the contract. Boeing's answer contained a cross-complaint in interpleader, joining Tilley and the surety as defendants. (It is the interpleader action out of which this appeal arises.)
April 30, 1957, Sundberg, the surety, and Boeing stipulated the amount unpaid under the contract, which amount Boeing deposited into court. The surety claimed the entire fund by virtue of its assignment and by common-law subrogation. Tilley claimed a prior right to the amount of his judgment, by reason of the writ of garnishment.
From a judgment awarding the surety the entire sum deposited by Boeing, Tilley has appealed.
As noted above, the issue here presented is not one in which Tilley claimed any statutory labor or materialman lien, or one in which Tilley's alleged claim against Sundberg was filed with the surety for payment and the claim disallowed, but one in which Tilley, as a judgment creditor of Sundberg, claims priority over the surety to the funds deposited by Boeing in its interpleader action. The appellant in his appeal brief, states the issue involved in this appeal as follows:
'The issue on appeal is between Tilley as appellant and American Surety and Boeing as respondents and concerns appellant's claim against respondent Boeing by reason of a writ of garnishment.'
We find no merit in appellant's claim to priority for the following reasons:
(1) Tilley did not appeal from the order enjoining the enforcement of the writ of garnishment. The propriety of the injunction order cannot be questioned in this proceeding. The enforcement of the writ having been enjoined, the appellant cannot now claim any rights thereunder.
(2) Boeing's amended answer to the writ of garnishment alleged that it was not indebted to Sundberg except in a certain unliquidated amount, which amount was subject to various claims of creditors having priority thereto; that it (Boeing) did not have in its possession or under its control any personal property or effects whatsoever belonging to Sundberg, and that Sundberg owned no stock in Boeing.
The rights of a garnisheeing creditor are no greater than those of his debtor, and, if the debtor cannot recover the alleged debt in an action against the garnishee defendant, his creditor is under a similar disability. Arcweld Manufacturing Co. v. Burney, 1942, 12 Wash.2d 212, 121 P.2d 350, and cases cited. See, also, J. C. Mahan Motor Co. v. Lyle, 1934, 167 Tenn. 193, 67 S.W.2d 745. To support garnishment, the garnishee defendant must be indebted to the principal debtor. Barkley v. Kerfoot, 1914, 77 Wash. 556, 137 P. 1046; Austin v. Wallace, 1921, 117 Wash. 61, 200 P. 566; Landaker v. Anderson, 1927, 145 Wash. 660, 261 P. 388. An unliquidated claim is not subject to garnishment. Bassett v. McCarty, 1940, 3 Wash.2d 488, 497, 101 P.2d 575.
Could Sundberg have maintained an action against Boeing for the retained percentage at the time of its answer to the writ of garnishment in the Tilley action, and prior to the completion of the contract?
The painting contract provided in part:
'18. Progress Payments * * *
(b) [ Change Order No. 1] In making such progress payments there shall be retained 10 per cent of the estimated amount until final completion and acceptance of all work covered by the contract. * * *
'(d) Upon completion and acceptance of all work required hereunder, the amount due the Contractor under this contract will be paid upon the presentation of a properly executed and duly certified invoice therefor, after the Contractor shall have furnished Boeing with a release, if required, of all claims against Boeing arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the Contractor from the operation of the release in stated amounts to be set forth therein. * * *
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