Weil v. C.H. Tyler & Co.

• Decision Date: 31 October 1866
• Citation: 38 Mo. 545
• Court: Missouri Supreme Court
• Parties: JOSEPH WEIL AND MAX WELL, Respondents, v. C. H. TYLER & Co., GARN., Appellants.

38 Mo. 545

JOSEPH WEIL AND MAX WELL, Respondents,

v.C. H. TYLER & Co., GARN., Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Law Commissioner's Court.

S. A. Holmes and C. H. Chapin, for appellants.

I. If the assignment of the due-bill by the defendant to Baehr was valid the garnishee must be discharged.

II. A note or due bill payable in specific articles, in which no day or place of payment is mentioned, becomes due on a special demand of the articles specified at the debtor's place of business, and such a contract becomes a money debt only after a demand and refusal to pay over the specified property. The defendant having made no such demand, no right of action had accrued at the time the appellant was garnished--Chip. Contr. 28, 33-5, 48; Id. Eaton's Supp. § 8, p. 228, & § 12, p. 234.

III. A debt or note for specific articles cannot be garnished; it is only a debt due in money that can be garnished--Drake on Attach. § 550; McMinn v. Hall, 2 Tenn. 328; 4 Mass. 102; Minn v. Parker, 1 Ala. 421; 6 Port. 371; 14 Pick. 550; 7 B. Mon. 101; Attach. Act, R. C. §§ 19, 20, 35, 36, 38.

Davis & Evans, for respondents.

WAGNER, Judge, delivered the opinion of the court.

The appellant was summoned as garnishee of one Henry Bucking, and in his answer denied all indebtedness otherwise than upon a certain due-bill, of which the following is a copy:

“St. Louis, Mo., November 16, 1860. Due Henry Bucking one thousand dollars in brandy at five dollars per gallon. We will let him have one or two barrels of fine whiskey on the above amount. This is for commissions. C. H. Tyler & Co.”

The due-bill was endorsed, and there was an interplea filed, but the issue was found against the claimant; and as it has no material bearing on the question raised by the record, it will not be further noticed.

Upon a trial before the court, a jury being waived, no evidence was given that a demand was ever made for the brandy mentioned in the due bill; but there was evidence tending to show that the appellant had the brandy, and had always been ready and willing to deliver the same when legally demanded or called for. The court decided that a special demand for the delivery of the brandy previous to the service of the garnishment was not necessary, and then rendered judgment against the garnishee for the amount in money.

Notes for the payment of money, absolutely on demand, require no specific demand; the commencement of a suit is a sufficient demand. But the rule is otherwise with respect to notes payable in specific articles, where no day or place of payment is mentioned, or are not fixed by some clear and certain implication of law. Thus, where the note was payable in farm produce on demand, and neither time nor place of payment was specified, it was held that before an action could be maintained a specific demand should have been made at the farm of the debtor--Lobdell v. Hopkins, 5 Cow. 516. Where a party has agreed or obligated himself to pay in specific articles, he cannot be charged or proceeded against as for a money debt till demand is made, and there is a refusal or neglect on his part to perform the contract; for until then he is in no default, and he has a right to insist on the terms of his...