Watkins v. Pope

McCay, J. The written contract between Williams and Watkins reveals the following transaction: Williams sells to Watkins a certain “stock” of goods in a store-house in Atlanta, and Watkins agrees to pay for them by paying a certain debt of $500 to William Solomon, due by Williams, to which Watkins was security; second, by paying the debts Williams owed for the “ stock,” estimated at $1,500. Within ten days after this sale, Mr. Pope garnishees Watkins, and it is contended that he is entitled to a judgment on 'the ground that Watkins is indebted to Williams $1,500 00. We think not. The mode of payment was evidently one of the considerations in the sale. Watkins has a right by his contract to pay in a particular manner. As to the $500 00, it is admitted that he might have the very strongest reasons to pay that rather than cash. But we can easily see why, with the best intentions, as he was himself about to embark into business, and perhaps deal with these very stock creditors, he should stipulate for the payment of the debts due them. It does not appear that these debts were all due at the time, and it might be that he hoped to get some indulgence on them. At any rate, that was his contract, and until he breaks it neither Williams nor his creditors can complain. There being no time fixed within which this payment was to be made, we think he had a reasonable time, considering the distance and number of the debts. If, within a reasonable time, he has failed or refused to pay these debts, or to have himself substituted for Williams, so as to relieve Williams entirely, then he has broken his contract, and Williams, or his creditors, may proceed against him. We do not think this is a novation under the Code, section [518] 2682, for there was clearly no assent of any of the creditors, much less an agreement on their part to look to Watkins, and this is necessary to constitute a novation. Code, section 2682. Nor is it an assignment in trust for the benefit of these creditors, which the Court will presume they will assent to,, because it is for their benefit. It does not pretend to be an assignment. It is a simple sale, the .consideration of which is the payment by Watkins of certain debts due by Williams. Nor is it a deposit, by Williams, with direction for its application, and subject therefore to revocation. If this were so, the case of Howard College vs. Pace, 15th Ga., 486, would be a strong authority for the plaintiff in the garnishment. If it appeared that there was in this transaction any fraud, any attempt to hinder or delay the creditors of Williams, or any collusion between Watkins and him, for his (Williams’) benefit, that would give an entirely new aspect to the case. Watkins, it -is plain, has got the effects of Williams, but if he has them for any fraudulent purpose against the creditors, he can be made chargeable by them, or any of them. These particular creditors, to-wit: the stock creditors, have no special interest in this transaction until they assent to it, and release Williams. If, therefore, there is any collusion or arrangement between Williams and Watkins to hinder or defraud Williams’ creditors, by this mode of payment, nominally agreed upon, any creditor may interfere. He would have every right of Williams, and the additional advantage, that he might set up Williams’ fraud, which he could not do. We repeat, however, if there is no fraud, Watkins had a right to his eontraet. If he refuses, of, after a reasonable time, fails to comply, a right of action arises in Williams, and therefore, in his creditors. Judgment reversed. ■'