Balliet v. Scott , 32 Wis. 174 ( 1873 )

DixoN, C. J.

The testimony taken on the trial, and preserved and reported in fall in the bill of exceptions, very clearly shows that on the day the defendant was served with garnishee process, he was not indebted to the judgment debtors, Doton & Bennett. There was at that time a balance unpaid on the contract, but not sufficient to pay the wages of the laborers for which the defendant had already become legally bound and holden. The estimates showing the amount of work done by Doton & Bennett under the contract in the months of April, May and June, were as follows: April, $3,081.06; May, $8,027.94; June, $6,753.09; making in all, $17,812.09. The payments for the same months were as follows: April $2,445.-37; May, $12,606.23 ; June, $9,551.55 ; being a total of $24,-603.15. Of these payments, all were made before the 26th of; June, the date of service of process, except the sum of $420.98 for supplies for June, and the sum of $7,372.12, laborers’ wages for the same month. If we exclude the sum for supplies paid after the service of process, and allow the garnishee nothing for that, and include the sum paid for wages of laborers on the ground that he had become legally liable for such payment, it will be seen that there was nothing whatever due or to become due to the contractors, but that they were in fact largely overpaid the full price called for by the contract at the time the process was served.

The question whether the defendant is to be protected for the $7,372.12, laborers’ wages paid after the service of the process, is a very simple one. The written contract between him and the judgment debtors, Doton & Bennett, expressly authorized him to pay the laborers employed by them in the prosecution of the work and to take the receipts of such laborers, which should be deducted as so much paid upon the contract. In pursuance of such authority the defendant had promised the laborers that he would pay them, at the time of their employment and before they had performed the labor, and, of course, before any process of garnishment was served upon him. The authority contained in the contract was equivalent to a request on the part of the contractors to the defendant to pay so much money which he owed them to their creditors, the laborers, which when he had promised the laborers to do, and they had given their assent, it became a binding obligation or contract between him and them or each of them, not avoided by the statute of frauds nor in any manner affected by its provisions. The promise or promises made to the laborers differed not at all in principle from those upheld in Putney v. Farnham, Garnishee, 27 Wis., 187.

It appearing from the evidence, therefore, which is clear and uncontradicted, that there was nothing due from the garnishee to the principal debtors when the process was served, it is immaterial what errors, if any, were committed by the court in the charge to the jury. The plaintiff could not have been prejudiced, since the jury could not have found otherwise than for the defendant The court might very properly have so instructed them.

By the Court. —Judgment affirmed.