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D. C.]

Opinion of the Court.

plaintiff, any of the items enumerated. Under an order of court, the garnishee was required to submit to an examination, at the termination of which plaintiff moved the court for a judgment of condemnation. From the order granting the motion, this appeal was taken.

Mr. H. Winship Wheatley and Mr. Paul B. Cromelin for the appellant.

Mr. Bynum E. Hinton for the appellee.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

The balance garnishee conceded that he had in his possession at the inception of this suit would have belonged to defendants but for their failure. His offsets epitomized are as follows: Attorney's fee, $5,000; claims of certain subcontractors in the event they should not recover from the surety company or the defendants, $2,648.06, and a claim for damages asserted against the garnishee by one Pillow for an alleged breach of contract, for $1,325.69.

As to the attorney's fee, it is clear, we think, that the garnishee had no claim against defendants, since he was engaged by the surety company and throughout was acting as its agent. That he so recognized his employment is established by his own testimony to the effect that he submitted his claim for an attorney's fee to the surety company, and not to the defendants, and that the same was being held by it under advisement when the present suit was instituted. Hence, the attorney's fee amounted only to an unliquidated claim, which could not be asserted either by the surety company itself or by its agent, the garnishee, against plaintiff's claim for material furnished, and for which the surety company became liable on its bond, when defendants failed. Eliminating this item, the other items of set-off are merely contingent claims of subcontractors, who are looking to the garnishee only in the event that they fail to recover from the surety company or the defend

Opinion of the Court.

[43 App.

ants, and a pending suit for damages against the garnishee for breach of contract.

The garnishee was the agent of the surety company to complete the forfeited contract of defendants. Certainly defendants had no claim on the garnishce for the funds in his hands, since it appears that after the liquidation of the claims against defendants, no possible balance can exist. It is clear that garnishee's contingent liability arises from his agency for the surety company in carrying out the contract upon which, by the failure of defendants, it became liable. The garnishee is therefore in the position of attempting to set-off against a valid claim for which defendants were primarily liable, first, accounts against the surety company and, second, a claim for damages arising from his agency, which may never mature into a judg ment. Neither of the items are matter of indebtedness between him and defendants, the former of which certainly, and the latter possibly, if called upon to pay, he could in turn enforce against the surety company. But even if we were to concede the items of set-off to be claims which the garnishee held against the defendants, they were merely contingent, and not enforceable as such, when this suit was begun. "This being the case, it would seem to follow that when the garnishee seeks to exempt himself from liability on account of a claim which he holds against the defendant in the judgment, such claim, in order to protect him, must be a good legal set-off to his own indebtedness, such a set-off as he could have made available against his creditor, had the latter sued him, in his own name, on the day on which the writ of garnishment was served upon him." Self v. Kirkland, 24 Ala. 275.

Hence, even if the liability of the garnishee could be distorted into claims against the defendants, they are altogether contingent and uncertain, and are not the subject of even equitable set-off, much less legal, by the garnishee. Smith v. Boston, C. & M. R. Co. 33 N. H. 337. The law is so well settled that a garnishee cannot claim a set-off for unliquidated and contingent claims, even against a defendant, that the defense of the garnishee in his case totally fails.

D. C.]

Opinion of the Court.

It

It appears that a motion for condemnation was prematurely filed, and, for that reason, denied by the court. Subsequently, the motion upon which judgment was entered was filed. is now urged as error that the second motion was filed without first obtaining leave of court. It might be that, had plaintiff attempted to take judgment on the motion prematurely filed, leave of court would have been necessary to renew it; but when the first motion was denied it left the case as if no motion had been made, and it was open for plaintiff to file a new motion when so advised. The fact that the court took cognizance of the second motion and gave judgment thereon, in the absence of anything in the record to the contrary, implies regularity, and the procedure will not be inquired into here.

* *

It is contended that the attachment bond is insufficient, inasmuch as it is not in double the amount of the judgment, with interest and costs. Section 445 of the District Code [31 Stat. at L. 1258, chap. 854] provides: "That the plaintiff shall first file in the clerk's office a bond, with security to be approved by the clerk, in twice the amount of his claim, conditioned to make good to the defendant all costs and damages which he may sustain hy reason of the wrongful suing out of the attachment." It will be observed that the bond must be in twice the amount of the claim sued upon. The bond was for $6,000; the amount claimed in the declaration as then due and payable was less than $3,000. This meets the requirements of the statute. The law does not place a premium upon protracted litigation by encouraging a defendant to build up costs and interest for the purpose of defeating his bond. Uncertain costs and interest which may accrue during litigation are no part of a plaintiff's claim at the date of suit. They are contingent upon the nature and extent of the litigation, and accrue in the court thereof.

The judgment is affirmed with costs.

Affirmed.

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JUDD & DETWEILER, INC., v. GITTINGS.

ATTORNEY AND CLIENT; COSTS; BRIEFS; RULES OF COURT; CONSTRUCTIVE NOTICE.

1. In the absence of express notice to the contrary, court officials and persons connected, either directly or indirectly, with the progress of litigation, may safely regard themselves as dealing with the attorney instead of with the client; and this rule applies not only to obli gations incurred by the attorney for actual costs attending the litigation, but to the necessary expenses of attorneys, including the printing of briefs, which are not taxed as costs.

2. An action is maintainable by printers against attorneys for the price of printing briefs in two cases in which the attorneys were counsel, where it appears that one set of the briefs was for use in a case pending in this jurisdiction, and the other set in a case pending in another jurisdiction; that for a number of years similar transactions had been had between the parties, and in all instances it had been the custom of the plaintiffs to render their bill to the defendants, made out in their name, and for which in each instance they received in payment the check of the defendants, and that the defendants did not dispute the plaintiffs' account, or liability therefor, until suit was brought thereon, which was about eighteen months after it was rendered.

3. In an action by printers against attorneys to recover the price of printing briefs in two cases in which the defendants were counsel, the rules of court have little, if any, bearing upon the question of whether the plaintiff's had legal notice as to the filing and distribution of briefs in pending cases, especially where one set of the briefs in ques tion was for use in a court in another jurisdiction. District of Columbia v. Roth, 18 App. D. C. 547.)

(Distinguishing

No. 2743. Submitted February 3, 1915. Decided March 1, 1915.

HEARING on an appeal by the plaintiffs from a judgment of the Supreme Court of the District of Columbia entered upon an agreed statement of facts, in an action against attorneys to recover the price of the printing of briefs ordered by them. Reversed.

D. C.]

Statement of the Case.

The COURT in the opinion stated the facts as follows:

Appellant, Judd & Detweiler, a corporation engaged in the printing business in the city of Washington, brought suit in the supreme court of the District of Columbia against appellees Gittings & Chamberlin, a law firm in this city, for the recovery of a bill for printing briefs in two cases in which defendants were counsel.

The case was submitted to the court below upon an agreed statement of facts, in which it appeared that about the 8th day of November, 1911, defendants ordered from plaintiff fifty briefs for use in a case then pending in the Supreme Court of the United States; that on or about the 27th day of January, 1911, they ordered the same number of briefs printed for use in a case then pending in the supreme court of the state of South Carolina, and that the briefs so ordered were printed and delivered to defendants, with an accompanying bill. The material part of the agreed statement of facts is as follows: "Plaintiffs had done similar printing for defendants for a number of years, and bills were delivered with above mentioned work, made out in the name of Gittings & Chamberlin, as had been the custom. Bills for previous work of a similar nature had always been paid to plaintiff by defendants, plaintiff having no knowledge whether or not there had been previous payments to defendants by any or all of their clients; on the other hand, defendants never paid any of said bills without first receiving payment from the client, of which prior payment by defendants' clients plaintiff had no knowledge. On receipt of manuscript, plaintiff knew that defendants were attorneys for their respective clients, and that the work was ordered by them in no wise different from the manner in which other orders had been given by them to plaintiff, to wit, a telephone order by defendants to call for copy for their brief, and when the brief was printed, delivery of the same to defendants by plaintiff with a bill made out in defendants' name. The account was kept in the name of defendants on plaintiff's books, of which fact the defendants, however, had no knowledge. De

Vol. XLIII.-20.

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