Felch v. Eau Pleine Lumber Co.

ORTON, J. The defendant company placed in the hands of the garnishee, McCulloch, certain claims to collect, and by verbal agreement McCulloch was to pay himself out of the proceeds a debt the company owed him, and the claim of ■one James H. Howe for about $800, and the appellant his judgment against the company. Before the summons of garnishment was served upon him, he had collected said moneys, and had paid himself, and was then notified by the company that he should not pay the claim of said Howe out of such proceeds, but should hold the balance of said moneys for the company. Howe had no notice of such verbal direction of the company for McCxilloch to pay his claim out of the proceeds of said collections, and had never assented thereto, §,nd had never been notified that the money had been collected and held for him; but McCulloch remitted $500 of said moneys to Howe, and Howe receipted therefor. McCulloch had not only been directed not to pay Howe out of such moneys by the company, but the plaintiff had 433 demanded of him that they should be paid upon his judgment. The circuit court found that the plaintiff was not entitled to recover from the garnishee said $500. The third finding is: “I do not decide the question of liability as to the said sum of $500 between the said Eau Pleine Lumber Company and the said II. II. McGulloeh, for the reason above stated, that I hold that plaintiff cannot reach it by garnishee process.” The circuit court refused to find the only material fact in the case, which was whether the garnishee owed the defendant in the execution this debt. It is not sufficient to find, ■as a conclusion of law, that the plaintiff cannot recover this $500 from the garnishee. His right to recover it depended upon the fact whether McCulloeh, the garnishee, owed it to the defendant company, and that fact is not found at all. This would be sufficient in itself to reverse the judgment. But, on the evidence and the whole case as presented in the record, we are clearly satisfied that the garnishee, McCul-loch, had no right to pay this $500 to Howe against the specific directions of the company, whose agent he was for the collection of the claims of the company, and the demand of the plaintiff, when he had not become bound in any way by any notice, arrangement, or otherwise to pay Howe before such direction was given and demand made. He sent the money to Howe at his own risk, to pay it, if required, to the company, or respond as garnishee for that amount to the plaintiff. The case is sharply ruled by Huntley v. Stone, 4 Wis., 91, in which the precise question or principle was involved. By the Court.— The judgment of the circuit court is reversed, and the cause remanded ■ with direction to render judgment in favor of the plaintiff, and against the garnishee, McGulloeh, for the amount for which the former judgment was rendered, and for the additional sum of $500, together with costs.