Ray v. Lewis , 67 Minn. 365 ( 1897 )

MITCHELL, J.

The plaintiff, as receiver of the Columbian Fire Insurance Company, brought this action to recover from defendants an amount alleged to be due from them to the insurance company for premiums received by them as its agents under the contract (Exhibit B of the complaint). The defendants set up two defenses, — ■ one on the merits, and the other in abatement. The first was damages (to an amount in excess of plaintiff’s claim) caused by a breach by the insurance company of the contract (Exhibit B), the breach consisting of the insolvency and assignment of the company in February, 1894 (Exhibit A of the complaint). The plea in abatement was that the defendants had been garnished by creditors of the insurance company. The court found:

"That by reason of the assignment of said insurance company, and the consequent breach of its contract with the defendants, they suffered loss to the extent of six hundred dollars.”

The court deducted this sum from the amount in the hands of the defendants belonging to the insurance company, and ordered judgment against them for the balance, with interest from-the time when, according to the terms of the contract, it ought to have been paid.

There is no foundation for the contention of counsel that the $600 was deducted as a credit to which defendants were entitled under the contract. The terms of the contract show that they were not entitled to any such credit, and the court’s findings Nos. It to 16, inclusive, show what credits he did allow, and how he arrived at the balance due. Hence the only questions presented by the record and assignments of error are: (1) Did the evidence require a finding that defendants’ damages resulting from the breach of the contract were more than $600? (2) Were defendants chargeable with interest during their garnishment?

1. Tailing the view of the law most favorable to defendants, to wit, that the breach of the contract was total, and that they were entitled to recover, once for all, damages, present and prospective, resulting from the breach, we are of opinion not only that the evidence was not such as to require a larger award, but also'that the amount awarded was at least as large as the evidence would have justified.

Future profits on a contract of this kind are subject to many contingencies, and at best largely conjectural. The amount of profits in the past cannot be taken as the measure of damages, for the earning of these profits required the time and service of the defendants, which, when the contract came to an end, were free to be used in some other business. The evidence shows that this is the case with the defendants. They are all engaged in other work, in which the aggregate of their individual earnings is as great as that of the partnership while acting as agents of the insurance company. The evidence further shows that by reason of doubts as to the credit of the insurance company the business of the agency had ceased to be profitable some time before the company stopped business and made an assignment. The fact that defendants, at the time of accepting the agency, purchased from the company some of its capital stock, which has since depreciated in value, is not an element of the damages resulting from the breach of the contract.

2. The defendants’ debt to the insurance company was not one bearing interest by the agreement of parties, but accrued by way of damages for the wrongful detention of the principal sum. In such case the rule is generally stated to be that a garnishee ought not to be charged with interest while he is, by the legal operation of an attachment, restrained from making payment. But this only applies where the garnishee stands in all respects rectus in curia as a mere stakeholder, ready and willing to pay over to whomsoever the court directs. It never applies to a case where he assumes the attitude of a litigant. Drake, Attachm. § 665. This was the attitude of the defendants in this case. They denied their indebtedness altogether, claiming that their damages more than offset it.

Order affirmed.