Cobb v. Champlin

Fisher, J.,

delivered the opinion of the court.

The plaintiff below recovered a judgment in the Circuit Court of Claiborne county, against John H. Crump, and summoned one Parker as a garnishee, who answered, that he purchased of the plaintiff in error a certain amount of the stock of the Grand Gulf and Port Gibson Railroad, which stock had been owned by the defendant Crump; but the garnishee understood that, at the date of the sale, it belonged to Cobb, and he, the garnishee, accordingly denied his indebtedness to Crump. Cobb being summoned to contest the plaintiff’s right to the money, alleged that he was, at the date of the sale, the owner of the stock, and that the money was due 'from the garnishee to him, Cobb. The plaintiff replied, that the money was due to Crump, and liable to the said judgment; and upon this issue the case was tried in the court below, when a judgment was rendered for the plaintiff.

Cobb, the plaintiff in error, read in evidence the power of attorney, in the form of a letter from Crump, authorizing Cobb to sell the stock at a stipulated price, and after paying a certain amount to one Bridges, to place the balance to the credit of Crump’s account. Cobb also read in evidence two notes signed by Crump, and due before the sale of the stock, amounting in the aggregate to the sum of $538 46, and which notes were held by Cobh at the date of the sale of the stock, at least under the showing, such must he the presumption.

Upon this showing, we are clearly of opinion that Cobb’s right to the money, to the amount of the notes, was clearly established.

By the terms of the authority to sell the stock, he was authorized, indeed instructed, to place the money to the credit of Crump’s account; and this was in effect an assignment of the proceeds of the sale to the extent of Crump’s indebtedness to Cobh. By the terms of the sale of the stock, the garnishee undertook to pay to Cobb, and not to Crump; and so far as Cobb’s equity or right to the money is concerned, the payment of the money must he regarded as actually made to him at the time the sale was consummated ; and viewing the question in this light, suppose Cobb instead of Parker had been summoned as the garnishee, would the court have compelled him to pay over the money to the plaintiff, and leave his, Cobb’s, debts, due from Crump, unpaid ? Clearly not.

' Regarding the question in this light, we are of opinion that the court below erred in the judgment rendered.

Judgment reversed, and judgment here against the garnishee for the balance due, after deducting the amount of the notes due to Cobb.