Schuerman v. Foster

WiNSLow, J. We think it clear that the plaintiff should have had judgment. Foster agreed to pay the money to Mathews in case Mathews bought the farm upon the foreclosure. Mathews did in fact buy the farm, and consequently the event happened which entitled him to. the money. But it is said that Mathews consented that the money be paid to Hillman, and that Foster should be protected in that payment in the absence of evidence showing that he knew of or participated in any fraud. There are two answers to this objection: First. Mathews’ consent was simply, “ Then pay it over.” It is manifest that, in the absence of explanation (and there is no explanation), this must be construed, pay it over to F. M. Hillman, he being the party entitled to the money, if Mathews was not. This was no warrant to pay the money to D. Hillman, a 322 third person, to whom Foster in fact paid it. Second. Mathews’ consent was based upon Foster's statement that he (Mathews) could still sue him (Foster) for it if he wished to. This amounts to an agreement that Mathews’ rights of action against Foster should remain unimpaired notwithstanding the payment to another, and that Foster should rely for his protection solely on the indemnifying contract. No reason is perceived why such an agreement should not be effectual, and preserve Mathews’ right of action for the money against Foster. We conclude that Mathews had a good cause of action against Foster for the money in-question at the time this garnishee action was commenced. The garnishee attempted to prove at the trial that he had been previously garnished by one Sheldon, another creditor of Mathews. This was objected to by the plaintiff, because no defense of prior garnishee had been pleaded. The objection was well taken, and should have been sustained. Such a defense must be affirmatively pleaded. Drake, Attachm. (6th ed.), § 630a, and cases cited. The same principle is laid down in Adams v. Filer, 1 Wis. 306-323. By the Court.— Judgment reversed, and cause remanded with directions to render judgment for plaintiff in accordance with this opinion.