Edwards v. Roepke

Cassoday, J. The statute made the garnishees liable to the plaintiff to the amount of the property, moneys, credits, and effects in their possession or under their control belonging to Oumberlidge, or in which he was then interested, to the extent of his right or interest therein, and of all debts due or to become due to him, except such as might be by law exempt from execution. Sec. 2768, E. S. The corresponding section of the statute applicable to garnishment in justice’s court contains substantially the same language. Sec. 3719, E. S. Under this last section it has been held by this court that “a specified salary per month, to be paid to an employee at the end of each month, is not liable to process of garnishment served before the end of the month in which it is to be earned. It is neither then ‘ due,’ nor is it within the meaning of the section . . . ‘to become due,’ because its becoming due depends upon a contingency.” Foster v. Singer, 69 Wis. 392. It is there, in effect, said, that the liability or non-liability of the garnishee becomes fixed at the time of the service of the garnishee process, and depends upon whether at the time of such service the principal defendant’s right to such property, money, credit, effects, or debt has become fixed, and absolute as against such garnishee; that “debts . . . to become due” to such principal defendant, relate only to such as the garnishee owes absolutely at the time of "such service though payable subsequently. Such is the logical result of other decisions of this court. Goode v. Barr, 64 Wis. 659; Drake v. Harrison, 69 Wis. 99; Ingram v. Osborn, 70 Wis. 192. It is manifestly the true construction of the section of the stat [576] ute here involved. It only remains to apply such construction to the case at bar. It appears from the evidence and the terms of the contract that only $700 had become due thereon from the garnishees to Cumberlidge at the time of the service of the garnishee process. Prior to that time, as found by the referee, the garnishees had paid Cumberlidge on the contract in numerous items of cash and flour amounting in the aggregate to $691.50, leaving only $8.50 due and unpaid thereon at the time of such service. By the terms of the contract nothing more became due thereon until the new boiler and work thereon were fully completed in good workmanlike order of the first class, with material and workmanship which should be acceptable to the inspector therein named. That, as found by the referee, did not occur until • in November, 1885, some four months after the service of the garnishee process. At the time of such service there was no certainty as to whether it would ever occur ot not. The right to such balance, therefore, had not, at the time of such service, become fixed and absolute as against the garnishees or in favor of Cumberlidge, and hence was not subject to garnishment. But it is claimed, and the referee found, that the title to the old boiler mentioned in the contract became vested in Cumberlidge at the time of the execution of that contract,— December 11, 1884,— as a payment thereon of $225, the agreed valuation thereof. There are several good reasons why this contention was properly rejected by the trial court. At that time there was nothing due on the contract. By the terms of the contract nothing was to become due thereon until the arrival of the iron for the new boiler in Manito-woc — which might.never occur. The first payment was for a different amount, and was paid in cash, which indicates the construction which the parties themselves put upon the contract to be entirely different. The contract de [577] scribes the old boiler as then being in the mills of the garnishees at Manitowoc Eapids, and which they therein agreed “ to furnish and deliver free at Manitowoc OitjT, ... together with all the fixtures ” then “ attached and belonging to said boiler . . . provided^ however,” that said garnishees might “ at any time before the completion of the new boiler sell the old one, paying to the ” said Cumberlidgé therefor the sum of $225. It appears from the evidence that the old boiler, together with all the' fixtures thereof, remained as fixtures in the mills of the garnishees until at or about the time of the completion of the new boiler. During the time of such reserved right of sale it is very evident that the title to the old boiler did not vest in Cum-berlidge, but remained in the garnishees, especially so long as it continued to remain a fixture in their mills. The fact that the contract provided that in case the garnishees sold the old boiler before the completion of the new, then they should pay Oumberlidge therefor the sum of $225, necessarily implies that, if they should not so sell before such completion, then it and such fixtures should apply as a payment of that amount at the time of such completion. The construction given to the contract by the trial court is manifestly the only true construction. By the Oouvb.— The judgment of the circuit court is affirmed.