Brown v. Hartmann & Fehrenbach Brewing Co.

Superior Court of Delaware

Brown v. Hartmann & Fehrenbach Brewing Co.

40 A. 60, 17 Del. 195, 1 Penne. 195, 1898 Del. LEXIS 4

DecidedFebruary 16, 1898

StatusPublished

This text of 40 A. 60 (Brown v. Hartmann & Fehrenbach Brewing Co.) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brown v. Hartmann & Fehrenbach Brewing Co., 40 A. 60, 17 Del. 195, 1 Penne. 195, 1898 Del. LEXIS 4 (Del. Ct. App. 1898).

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Opinion

PennEWILE, J:—

An application for a non-suit is made in this case, on the ground that no evidence has been produced to show that at the time of the service of the attachment, Martin Brown, the garnishee, was indebted -to Dennis Reardon, or had in his possession any property liable to said attachment.

[197]*197Admitting to be true all the testimony which has been given in this case on behalf of the respondent, we think it does not appear that at the time of the service of the attachment, Martin Brown had in his hands or possession any money, goods, chattels, rights, credits or effects of Reardon liable to attachment.

The testimony substantially is that the consideration for the sale of the property of Reardon to Brown, was that Brown should pay certain debts which were due and owing to different persons from Reardon, there being, however, no time fixed at which said debts should be paid. It seems to us that Reardon himself, under these circumstances, could not have maintained an action for the purchase money, or for the value of said property, at least until there had been a demand upon Brown to pay said debts and a refusal upon his part so to do. The agreement between Brown and Reardon was a very indefinite one, at the best. There was no time agreed upon between Reardon and Brown, so far as appears from the evidence, at which these debts should be paid, and it does not therefore appear that the time has yet expired when these debts might under the agreement be paid. At all events, there is no evidence to show that there has been any demand upon Brown that he should pay them or refusal upon his part to do so ; and inasmuch as Reardon himself could not have maintained the action for the money, of course a creditor of Reardon would not occupy any better position and would not have any greater power than Reardon himself possessed.

While we regret very much to withdraw this case from the jury, yet, under the evidence which has been produced, we feel constrained to grant the motion for a non-suit.

Such is our conclusion after giving the matter the best consideration we could in the limited time we have had. And we desire to remind the counsel for the respondent of a late rule of the Court which provides that ‘ ‘ in all actions where a non-suit shall be granted, the plaintiff shall at that time be entitled, upon motion, to a rule to show cause why such non-suit should not be set aside.” Therefore the. respondent may, if so disposed, take advantage of the rule and secure a further hearing of the question when it could be more fully argued and more carefully considered.

[198]*198We therefore direct that the non-suit be entered.

Mr, Ponder declined to take a non-suit.

Mr. Ball requested the Court to instruct the jury to bring in a verdict for the defendant below.

Gentlemen of the jury :—You will return

a verdict in favor of the defendant below appellant.

Verdict for defendant below appellant.

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PennEWILE, J:—

An application for a non-suit is made in this case, on the ground that no evidence has been produced to show that at the time of the service of the attachment, Martin Brown, the garnishee, was indebted -to Dennis Reardon, or had in his possession any property liable to said attachment.

[197]*197Admitting to be true all the testimony which has been given in this case on behalf of the respondent, we think it does not appear that at the time of the service of the attachment, Martin Brown had in his hands or possession any money, goods, chattels, rights, credits or effects of Reardon liable to attachment.

The testimony substantially is that the consideration for the sale of the property of Reardon to Brown, was that Brown should pay certain debts which were due and owing to different persons from Reardon, there being, however, no time fixed at which said debts should be paid. It seems to us that Reardon himself, under these circumstances, could not have maintained an action for the purchase money, or for the value of said property, at least until there had been a demand upon Brown to pay said debts and a refusal upon his part so to do. The agreement between Brown and Reardon was a very indefinite one, at the best. There was no time agreed upon between Reardon and Brown, so far as appears from the evidence, at which these debts should be paid, and it does not therefore appear that the time has yet expired when these debts might under the agreement be paid. At all events, there is no evidence to show that there has been any demand upon Brown that he should pay them or refusal upon his part to do so ; and inasmuch as Reardon himself could not have maintained the action for the money, of course a creditor of Reardon would not occupy any better position and would not have any greater power than Reardon himself possessed.

While we regret very much to withdraw this case from the jury, yet, under the evidence which has been produced, we feel constrained to grant the motion for a non-suit.

Such is our conclusion after giving the matter the best consideration we could in the limited time we have had. And we desire to remind the counsel for the respondent of a late rule of the Court which provides that ‘ ‘ in all actions where a non-suit shall be granted, the plaintiff shall at that time be entitled, upon motion, to a rule to show cause why such non-suit should not be set aside.” Therefore the. respondent may, if so disposed, take advantage of the rule and secure a further hearing of the question when it could be more fully argued and more carefully considered.

[198]*198We therefore direct that the non-suit be entered.

Mr, Ponder declined to take a non-suit.

Mr. Ball requested the Court to instruct the jury to bring in a verdict for the defendant below.

Gentlemen of the jury :—You will return

a verdict in favor of the defendant below appellant.

Verdict for defendant below appellant.

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Bluebook (online)

40 A. 60, 17 Del. 195, 1 Penne. 195, 1898 Del. LEXIS 4, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-hartmann-fehrenbach-brewing-co-delsuperct-1898.