Archer v. People's Savings Bank

SOMERVILLE, J. If the garnishee, at the time of service of the garnishment, or at the time of making the answer, or at any time intervening between these two periods, was indebted to the defendant Whiting, or if there was then existing a valid and binding contract by which such indebtedness would accrue in the future, this debt, unless exempted from legal process, was subject to garnishment, and the garnishing creditor would obtain a lien on it from the time of the service of the summons on the garnishee. — Code, 1876, §§ 3268-3269; Code, 1886, §§ 2945-2946. The test must be, as uniformly and many times settled, whether the bank, as garnishee, owed the defendant such a money demand as could justly have been the basis of a recovery in an action of debt, or indebtitatus assumpsit. If such a contract existed for a definite time, not by its terms dissolvable at the pleasure of one or both parties, it is [254] perfectly manifest that no change or modification could be made in the terms of such contract, so as in any manner to destroy the acquired lien of the garnishing creditor, or otherwise prejudice his rights. — Fowler v. Williams, 52 Ala. 16; Waples on Attach. & Garnishment, 365. And if any part of the garnished debt was paid by the garnishee to the debtor in attachment, during the pendency of the garnishment proceeding, such payment was at the risk of the garnishee, and can avail nothing against the garnishing creditor, if he is ultimately held liable on his answer. — Shipper v. Foster, 29 Ala. 330; Drake on Attach. (6th Ed.), §§ 452-453. It is perfectly competent for an employer to stipulate with an employee, by bona fide agreement, that he will pay his wages weekly, or monthly, or for any other reasonable time, in advance; and such agreement, when free from fraudulent collusion, will be upheld by the court. And so long as these payments are made in advance, no debt can accrue for wages or salary due to such employee; and hence the employer can not be held liable as garnishee, under such state of facts. Alexander v. Pollock & Co., 72 Ala. 137; Callaghan v. Pocassett Man. Co., 119 Mass. 173; Worthington v. Jones, 23 Vt. 546. The- questions arising in the present case can be solved by the proper application of the foregoing principles. Taking the facts as set out in the garnishee’s answer as prima facie correct, it is a fair inference from all the evidence, that the implied agreement between Whiting and the bank was, that after his election on July 1st, 1885, as president of that institution, he was to be employed for the period of one year, at an annual salary of $3,000, with the privilege of drawing such salary by the week, and each week in advance. We do not construe by-law numbered three in the record, to have the effect of rendering the office of president a position held at the mere pleasure of the board. It is only “aásistants” who might be employed to aid the president in carrying on the business of the bank, who are declared to hold their positions at the pleasure of the board. The use of the word “other,” in describing “assistants,” means no more than other persons, employed as assistants to the president and vice-president. There is no room here for application of tffe rule of construction, that general words are to be restrained to things of the same kind with those particularized, under the principle of ejusdem generis. The memorandum entered on the minutes of the board of [255] directors, on November 19th, 1884, to the effect that Whiting had asked the consent of the board to be allowed “to draw his salary a week in advance,” which was granted, was competent evidence of the fact of mutual assent to this feature of the contract; and having been made before the service of the writ of garnishment, which was on July 20th, 1885, would prevail against the lien of such writ, provided the installments of the salary were actually collected in advance. The privilege of so collecting, in other words, must have been asserted before a debt accrued. But, if allowed to remain uncollected until a debt shall have become due, though but for a single day, such debt would at once become subject to the lien of the garnishment. And any subsequent election of the same officer, for another term, would impliedly confer the same privilege as to the exercise of this right, unless the terms of the contract as to the time of collection were changed. The written contract of employment made between the bank and Whiting, on July 31st, 1885 — afler the service of the garnishment — could not affect the terms of the contract already existing between them, as implied by Whiting’s election as president on July 1st, 1885, to the prejudice of the garnishing creditor’s rights. That election, as we have seen, was for the term of one year, at a compensation of $3,000 per annum, with the implied privilege of drawing such salary in advance, in weekly installments. But there is no reason why this modification might not operate on any subsequent term of Whiting’s presidency, after the lapse of the one extending between July 1st, 1885, and July 1st, 1886. It would, unless fraudulent, control the terms of1 the employment after the last mentioned date. — Alexander v. Pollock, 72 Ala. 137, and cases cited; Drake on Attach. (6th Ed.), 594.' A contract, as we have said, may lawfully be made to pay wages in advance, and the amount can not be reached by garnishment; for, as has been justly observed, this “would be in effect the attachment and forced sale of the debtor’s personal services — condemning him to involuntary servitude for the payment of his debts.” — 2 Wade on Attachment, §473, p. 295, and cases cited in note 15. But the observation again becomes pertinent, that the privilege of collecting his salary in advance would be ivaived by Whiting, unless promptly claimed and exercised by him; and if waived for a single day, so as to create a debt due, the'lien of the pending garnishment would at once attach, and the amount thus [256] becoming due would presumptively be subject to such lien, so as to cut off the right of payment to the debtor. And we further hold, that no debt for weekly services would become due, except in one of the following contingencies: (1) either the services for the given week must have been performed; or (2) the option to draw the amount in advance must have been asserted by a request to pay. The set-off interposed by the bank, as garnishee, against Whiting, can not, in our judgment, be sustained on the facts. If Whiting had sued the bank for his salary, this set-off' would have been no defense, on the ground of an implied agreement by the bank not to claim it. The agreement, as above stated, was to pay an annual salary, and to pay weekly in advance, if desired. And the evidence shows that it was paid, without any consideration of the set-off. The necessary, fair and honest implication is, that the set-off, based as it was on an old debt due by a partnership, of which Whiting was a member, was not to be claimed against this agreed compensation for his services. The very motive which induced its payment in advance, and a fact which would tend to rebut the charge of fraudulent collusion, may have been the implied need of the money for the maintenance of the debtor. Hall v. Magee, 27 Ala. 414; Waples on Attach. 367. It follows from these views, that the Circuit Court erred in giving the charge requested by the garnishee. Reversed and remanded.