Solomon v. Kenner

*410 BEAN, J. The garnishee assigns as error the entering of the judgment, and refusing the garnishee’s motion for an order dismissing the proceedings, and for judgment in favor of the garnishee for his costs. It appears from the testimony that on May 3, 1924, Charles E. Kenner and the garnishee partially completed negotiations and made and signed a written memorandum, for the construction by the garnishee for Kenner, “twelve houses of special selection to be delivered and erected per plans and specifications to be submitted to and approved by Charles E. Kenner (owner) for a sum not to exceed-$50 to be paid down, the receipt of which is hereby acknowledged and the balance of $500 per house, or a total of $6,000, to be paid on or before May 15, 1924, 50 per cent on each house when ‘roughed in’ and balance when completed.” This memorandum was signed by the parties. It appears that the total price of the houses was not agreed upon but was left for future determination after plans and specifications were made and approved by Kenner. Charles E. Kenner testified to the effect that soon after the memorandum was made it was understood between himself and the garnishee that they would not construct twelve houses at once, but should build only two at a time, and it appears that some stock plans were changed by an architect for the garnishee and were approved by Kenner for the construction of two duplex houses, estimated to cost $4,285 each. The garnishee, W. R. Bailey, states that it was understood between the parties that a four-room house should be constructed similar to another in the vicinity, at a price of $2,700. *411 Mr. L. P. Bartholomew, an architect, testified on ^behalf of the garnishee that he examined the lots where the houses were proposed to be constructed and changed the stock plans so as to provide for a basement under the two houses. He did not testify as to the value of the plans or specifications. Mr. Bailey, however, testified that several plans were prepared, one of which, for the two duplex houses, was approved by Mr. Kenner; that all of the plans were worth $350. This was questioned by the plaintiff, as Kenner never approved more than one plan and never agreed in any way to pay therefor. It leaves the testimony rather indefinite as to the reasonable value of making the plans and specifications. The trial court under this condition of the testimony appears to have allowed the garnishee $400 out of the $700 as compensation for all the expense and damages the garnishee sustained, on account of Kenner’s failure in proceeding with the construction of the two duplex houses. The testimony on the part of the plaintiff tended to show that the program initiated by the general memorandum was changed afterward. The appellant- submits that the only questions which are involved in this case are, first, was there a binding agreement between Kenner, the judgment debtor, and the Bedimade Building Company, the garnishee, for the construction of at least three houses? We think the testimony shows that the minds of the parties met as to the construction of the two duplex houses. Second, was this agreement breached by Kenner? The trial court evidently found that it was. We approve this finding. Third, is the loss of profits occasioned to the Bedimade Building Company thereby legal damage, which can *412 be set up against the claim of the plaintiff? The difficulty in answering this question is presented by the testimony which fails to show that the garnishee would have made any profit in the construction of the houses. The allegation in the answer regarding profits is a mere conclusion. There is a naked conclusion stated by Mr. Bailey on behalf of the garnishee, to the effect that usually they made 10 per cent profit in the construction of buildings. There was no testimony to indicate what would be the reasonable cost of constructing the buildings at that time, or the value of materials or labor therefor, or any circumstances or facts testified to upon which the trial court could base damages occasioned by loss of profits. We agree with the contention of the appellant that the plaintiff Solomon must depend only on the rights of his judgment debtor, Kenner; that the allegations, under Section 315, Or. L., must state a cause of action in favor of the judgment debtor against the garnishee, under the authority of the following cases: Case v. Noyes, 16 Or. 329, 332; Keene v. Smith, 44 Or. 525 (75 Pac. 1065); Scheuerman v. Mathison, 74 Or. 40 (144 Pac. 1177); Rood on Garnishment, § 46, p. 62. We think that the allegations of the plaintiff, setting up the details, and the fact that the garnishee had $700 which rightfully belonged to the judgment debtor Charles E. Kenner, was sufficient after verdict and judgment, in the absence of any demurrer or motion directed to the pleading. It is proper for the garnishee to allege and prove legal damages occasioned by Kenner’s breach of the contract as a defense to the garnishee proceedings by Kenner’s judgment creditor. See Schuler v. Israel, *413 120 U. S. 506 (30 L. Ed. 707, 708, 7 Sup. Ct. Rep. 648); note, 59 L. R. A. 389; Keene v. Smith, 44 Or. 525 (75 Pac. 1065). In order for the garnishee to avail himself of the loss of profits he must show that there would have been profits if the scheme had been carried out. There was testimony in the case to support the finding made by the trial court; therefore the judgment should not be disturbed. If either of the parties had a technical reason to complain, it was the plaintiff who has not appealed. We believe on the whole that the trial court reached a just conclusion. The judgment is affirmed. Affirmed. Burnett, C. J., and Brown and Belt, JJ., concur.