Ard v. Bowie , 125 Ark. 169 ( 1916 )

Wood, J.

(after stating the facts). The appellants do not challenge- the correctness of the judgment against Árd. The only question presented by this appeal is as to whether or not a judgment, under the facts above dis-' closed, should have been rendered, against the Agency as garnishee.

The Insurance Company is not a party to this record. Neither was the Agency garnished as the agent of the Insurance Company. The Agency was garnished simply as a corporation.

The judgment against the Agency, as garnishee, was erroneous for several reasons:

1. In the first place, the draft was sent to the Agency to be delivered and was held by it as the property of the Insurance Company until it was delivered. It was never delivered to Ard, and until delivery took place it remained the property of the Insurance Company and was held by the Agency as the property of the Company, and not as the property of Ard. So long as the Agency held the draft it was subject- to recall by the Insurance Company, and was recalled before it was delivered to Ard.' The Agency represented the Company and not Ard. It owed no duty to Ard, and was under no liability to him for the amount of the draft. The draft could not become Ard’s property until it was delivered to him.

Our statute to make uniform the law of negotiable instruments, provides: “Every contract on a negotiable instrument is incomplete and revocable until delivery of the instrument for the purpose of giving effect thereto.” Act. 81, sec. 16, Acts of 1913.

It is the general rule of the Law Merchant that delivery is necessary for the completion of commercial paper. 7 Cyc. 683, et seq.; Jones v. Jones, 23 Ark. 212; German Bank v. DeShon, 41 Ark. 331.

The agency had not notified Ard that it held the draft for him, and the Insurance company, by sending the draft to its agent, rather than mailing it direct to Ard, indicated an intention to retain control over the same until it 'was transferred by manual delivery to Ard.

2. As the agency was not indebted to the appellee Ard, the defendant in the original suit, and.did not have in its hands any money or property belonging to the debtor Ard, garnishment proceedings could not be maintained against the agency.

In Graf v. Wilson, 62 Oregon 476; it is said: “The general rule is that the creditor has no greater rights against the garnishee than the defendant had before the writ was served; that he steps into the shoes of the defendant and prosecutes for him in order that the credit or property of the latter may be subjected to the payment of such judgment as may be obtained against him.” And it is further said in that case: “It is not a decisive test, though a usual one, that the principal debtor be able to maintain an action or suit against the garnishee in order for garnishment to he.”

Here- the draft evidenced an indebtedness of the insurance company to Ard, and not an indebtedness of its agent, the Phillips & Ferguson Agency. The Agency was a separate, corporation, and, as we have seen, was not even garnished as the agent' of the insurance company. ■ See St. L., S. W. Ry. Co. v. Gate City Cooperative Grocery Co.,70 Ark. 10. See also case note 2 to Mayo, et al., v. Milwaukee Amusement Co., 36 L. R. A. 661.

3. The policy covering the loss for which the draft was made was in the name of Mrs. Ard, and this was at least prima facie sufficient to show that Mrs. Ard was entitled to the proceeds of the draft. Such being the facts disclosed by the record, the court was certainly justified in holding that the draft was not subject to garnishment in the hands of the appellee Agency.

The court, therefore, erred in not granting appellant Agency’s prayer for judgment in its favor. The judgment therefore will be reversed as to the appellant Agency and judgment entered here in its favor.

The judgment against appellant Ard is affirmed.