Mobile Street Railway Co. v. Turner

COLEMAN, J. Several questions have been argued in this cause, but we deem it unnecessary to consider but one. Appellant was summoned as garnishee to answer as to its indebtedness to one Sossaman, against whom appellee had ■ recovered a judgment. The City Railroad Company by agreement contracted with Sossaman for the erection of a certain building, and during tire execution of the contract, and before its completion, sold its property to appellant, including the building in progress of completion. For the purposes of this trial, we will treat the contract binding upon appellant as the original contractor. The contract contains the following stipulation : “In case of delay by the contractor in producing and delivering the requisite materials, or in the advancement of the buildings or works, or of a deficiency of workmen, or for misconduct, inattention or-inability, the owner shall be at liberty (after the superintendent, has given to, or left for the contractor, with his foreman or clerk, three days notice in writing) to provide, at the expense of the contractor, all such materials, and employ such number of workmen at such wages as the superintendent shall think proper; and the cost and charges incurred shall be retained out of the contract amount, and paid by a reservation from the estimate from time to time, or amounts thereof which may lie due, or recoverable as liquidated damages.” The answer of the garnishee, which must be considered as conclusively true in the absence of any contest, avers that the said contractor was guilty of delay in the performance of his contract in the advancement-of the building, and that garnishee as -owner did pay for account of said Sossaman the material-men and workmen, at such price and wages as were reasonable and acceptable to the parties to said contract, and said sum so paid and advanced for workmen and material was paid by the [216] garnishee, and was retained out of the contract amount, and was reserved from the estimate due said Sossaman; and that such action on the part of the garnishee was necessary to secure the completion of said contract; and that said action was consented to by said Sossaman, but the garnishee did not claim any damages from the said Sossaman because of said delay. The garnishee further answered, that under the contract the garnishee had the right, in case said Sossaman did not complete the work according to his contract as to time, to employ men and purchase material at the expense .of said Sossaman for the completion of the work. The very purpose of this stipulation in the agreement was to provide against the contingency which came to pass, namely, delay of the work by Sossaman, his inability to purchase material, and employ men to complete the contract, and the necessity that compelled the garnishee to pay for the material and employ workmen for this purpose. Sossaman could claim nothing under the contract, except the balance left after deducting these necessary payments and advances. The fact that the stipulation contained a provision which authorized garnishee to recover, as liquidated damages, any excess advanced to material-men or workmen, from Sossaman, and that garnishee did not claim damages for delay in the work, or for excess paid, in no way tends to show a liability from garnishee to Sossaman. The answer clearly avers, that with the exception of a small amount claimed by Sossaman as exempt, and which it is conceded was exempt, the entire amount to be paid under the contract to Sossaman, was paid by garnishee to material-men and workmen, as authorized by the above stipulation. The claim of the plaintiff was subject to these payments. Without deciding the question, we incline to the view, that the mere notice given to garnishee by material-men and subcontractors, of their intention to perfect and enforce the lien of mechanics and material-men, provided in the statute, without more, did not authorize the payments made after service of the writ oí' garnishment.—Seibs v. Englehardt, 78 Ala. 508; 87 Ala. 465; Code, §§ 3026, 3029, 3040. The judgment of the Circuit Court must be reversed, and a judgment here rendered, granting the motion of the garnishee, discharging it upon the answer. Reversed and rendered.