Melton Hardware Co. v. Heidelberg

Whitfield, C. J., delivered the opinion of the court. The contention most earnestly insisted on by the appellants in this case is that the appellee did not specially plead as an offset the amount which it would have taken to correct the defects in the building and make it conform to the plans and specifications. These appellants obtained judgment against the house builder, Pool, and then had garnishment process served on the appellee under our statute (§ 2337 et seq.). See chapter on “ Garnishment,” Code of 1906. Garnishee answered, strictly in conformity with the statutory direction (§ 2342). The usual traverse was filed, and on the issue thus framed, of debt or no debt on the part of the appellee to the contractor, the cause was tried. The evidence in the ease showed overwhelmingly that it would take $2,000 to make the house, for the building of which appellee was to pay Pool $6,300, to conform to the plans and specifications. This is the great fact, standing out like a mountain in the landscape in this case. The appellee had paid Pool $5,000, and would only be due him $1,300 on the contract price, and that would be $700 less than her damage and that $700 of damage over and above the whole contract price for this house exceeded by several hundred dollars any amount which the appellee owed Pool for repairs, etc., on the other house, as to which there was an oral contract for repairs, etc. In the course of the trial the appellee put on the stand Logan, [605] a house builder, and he proved, abundantly, that it would require the amount of $2,000 to make her whole on the new building. No objection whatever was interposed by appellants to this testimony of Logan, showing the facts that the building was not constructed in a workmanlike manner and that the damage resulting therefrom was at least $2,000. When witness McArthur was examined, there was an objection to some questions about-this damage; but they were manifestly not based upon the ground that there was no special plea of an offset under which they would be competent. In order to avoid the mere general objection, counsel for appellee reframed the question so as to ask, not what it would cost to take off the plastering and put on other plastering, but what it would cost to take off the plastering and replaster the house according to the plans and specifications of this particular contract; and this question as thus framed was objected to as leading. If it had been the purpose to object to McArthur’s testimony as to the amount it would take to make the house conform to the plans and specifications on the specific ground that the appellee had not specially pleaded as an offset such damage or such amount, that specific objection should have been made, that the court might act upon it intelligently. No objection whatever was made to Logan’s testimony on the same point, and it is therefore clear that counsel never objected in the court below to the evidence showing the damage on the ground that no offset had been pleaded, under which, alone, such evidence could have been introduced as appellant claimed. If, therefore, counsel were right in the abstract in saying that the appellee should have pleaded specially as an offset the amount it would have taken to make the house conform to the contract, we think it clear that they waived the right to make such objection by the course which the trial took and the failure to specifically object. This principle is expressly laid down in Kling v. Tunstall, 109 Ala., 608; 19 South., 907, one of the authorities mainly relied on by the learned counsel for appellants. The authority [606] generally cited to support this contention is 14 Am. & Eng. Ency. of Law (2 ed.) p. 846, note 3, where it is said: “The defense of set-off must be specially pleaded or claimed by the garnishee. It is not as a rule available under a general denial of the indebtedness ”— citing the above cases and two or three others, but concluding with this: “See, however, Howe v. Hyer, 36 Fla., 12; 17 South., 925; Ashby v. Watson, 9 Mo., 236; Hubbard v. Fisher, 25 Vt., 539, per Redfield, C. J.” In the Florida case, Howe v. Hyer, the court said: “Another paint urged is that the garnishee should not have the benefit of the defense of a set-off, because he did not specially plead such defense, but only pleaded the statutory answer; i.e., a general-denial of the indebtedness to the defendant and of the possession of goods, etc., belonging to him. The proceeding was purely statutory. The statute under which the trial was had provides that, when such answer is traversed, ‘ the court shall direct, without the formality of pleading, a jury to be impaneled ... to inquire what is the true amount due from such garnishee to the defendant,’ etc. We do not think, under such statute, a set-off need be formally pleaded in order to be available as a defense; but under such issue the court should allow any legal and proper evidence and defense that would show the true amount due from the garnishee to the defendant.” At page 833 of 14 Am. & Eng. Ency. of Law, it is said: “ It is a well-recognized general rule that the extent of the liability of the garnishee to the plaintiff is fixed by the former’s liability to the defendant. The garnishee is not to be placed in a worse position by operation of the proceeding against him than he would have been in had .the defendant’s claim been enforced against him directly. The rights of the plaintiff do not rise above or extend beyond those of the defendant, in whose shoes he stands, and he can assert only the rights of the latter.” This is the fundamental principle which must control here. These appellants take nothing by their writ, unless the appellee owed something — was indebted in some sum to Pool, the [607] house builder. That was the determining issue, and on that it is manifest from this testimony that she owed Pool nothing, but that he rather was in her debt by reason of the excess of the amount it would take to conform the house to the plans and specifications over the balance of the contract price unpaid by her. We think that, whilst our statute does not contain the precise language of the- statute referred to in the Florida case substantially, the provisions are identical. The issue to be tried is exactly the same, and the answer of the garnishee is prescribed. We do not think that the technical rules of set-off in ordinary litigation are applicable under this statutory proceeding, where the sole purpose is to ascertain what the garnishee may owe the defendant. But, whether they are so applicable or not, as stated above, the failure so to specially plead was waived by the course of the trial. Without protracting this opinion, it is only necessary to add that, whatever minor errors may exist as to the instructions or otherwise, no other result than that which was reached in this case could possibly be proper on the testimony in this record. Wherefore the judgment is affirmed.