J. Zimmern's Co. v. Oberhaus

BRICKEN, J. In the inferior civil court of Mobile, suit was instituted against Sam Brawley by A. Z. Oberhaus to recover the sum of $33, and a writ of garnishment in that suit was served upon the appellant on June 2, 1917. On June 29, 1917, judgment for $39.10 was rendered against the garnishee upon his oral answer, and from this judgment an appeal was taken by the garnishee to the circuit court of Mobile county, where, on October 13, 1917, judgment for $20 was rendered against the garnishee on his oral answer. From the evidence set out in the record it appears that Brawley was employed by appellant by tlie week at a salary of $12 per week, -for the period of time extending from June 29, 1917, the day of making the oral answer by appellant in the inferior court. The garnishment was served on-Saturday, June 2, 1917, and Friday, June 8th, was the termination of the first week’s employment after the service of the garnishment. On June 8th, and every week thereafter, except one, when Brawley was paid $12, appellant paid Brawley $10, and withheld $2 to be applied to Brawley’s indebtedness. At the time of the"service' of the writ of garnishment Brawley was indebted to appellant in the sum of $64. The first week Brawley’s wages were garnished appellant proposed to pay him nothing, and to credit his account with the amount of $12, which Brawley earned that week. To this Brawley objected, and threatened to quit appellant’s service, whereupon appellant paid Brawley $10 at the end of that week and each succeeding week until the time of making his oral answer in the inferior court. [1] It is conceded to be the law that the garnishee is not liable to the plaintiff when Ms answer shows that during the period of the garnishment there is a balance due the garnishee which he can offset against defendant’s claim. The plaintiff, as against the garnishee, may recover only what the defendant might recover against him in an action of debt or indebitatus assumpsit. Alexander v. Pollock, 72 Ala. 137; Jefferson County Savings Bank v. Nathan, 138 Ala. 342, 35 South. 355; Garrett v. Mayfield Woolen Mills, 153 Ala. 602, 44 South. 1026. [2] This brings us to the main and only question in this case. From the date of the service of the garnishment to the date of the rendition of judgment in the inferior court did appellant have against Brawley any claim which he could, or which he did, offset against the claim for wages earned by Brawley during this period of time? This is a question of intention between Brawley and appellant. We are constrained to hold that the lower court reached a correct conclusion upon the facts of this particular case. When we take into consideration the conduct of appellant, his admission that he continued to pay' Brawley $10 per week; that this amount was required by Brawley for living expenses; that these payments were made in the face of Brawley’s threat to leave the employment of appellant if they were not paid, we are forced to find as a fact that there was an implied agreement, between Brawley and the appellant, that .the amount due appellant by Brawley was not to be offset against'the wages earned by Brawley, to the extent of at least $10 per week, during the period under discussion. Hall v. Magee & Reid, 27 Ala. 414; Archer v. People’s Savings Bank, 88 Ala. 249, 7 South. 53; Stephens v. Cox, 124 Ala. 448, 26 South. 981. Eet the judgment be affirmed. Affirmed.