Durling v. Peck

Supreme Court of Minnesota

Durling v. Peck

43 N.W. 65, 41 Minn. 317, 1889 Minn. LEXIS 351

DecidedJuly 19, 1889

StatusPublished

This text of 43 N.W. 65 (Durling v. Peck) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durling v. Peck, 43 N.W. 65, 41 Minn. 317, 1889 Minn. LEXIS 351 (Mich. 1889).

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Opinion

Yanderburgh, J.

The question here presented is the alleged liability of the garnishee in this, action, who had bought cattle of the defendant, under an agreement with him, in which he undertook to-pay him the balance of the consideration therefor, after paying certain specified sums owing to divers parties, and “as soon as the claims of E. Demming & Co. and Flanigan & Co. against said party of the first part [Dyer] have been settled.” Upon his disclosure, the garnishee stated that Demming & Co. and Flanigan claimed to hold mortgages on the cattle, which in fact appear of record, and their claims were still in dispute and unsettled between them and Dyer. The court thereupon ordered that these claimants be made parties. One of them came in, issues were framed, and upon the trial thereof his case was dismissed by the court, because he failed to establish any right to the balance of the purchase-money due from the garnishee. The other party claimant (Demming) did not appear. Judgment was thereupon rendered against the garnishee for the amount of plain[318]*318tiff’s claim against Dyer, the defendant. We think this judgment cannot stand. The fact that the claimants, who were not parties to ■or interested in the contract between the garnishee and the defendant for the sale of the cattle, did not make or establish any claim to the purchase-money, which Peck had not agreed to pay them, did not affect their rights as mprtgagees, or the validity of their claims against Dyer to secure which the mortgages were given; and it does not appear that their claims have been settled, or that they are invalid. They were interested as mortgagees, and Peck was not obliged to pay Dyer the balance until their claims were settled; and it does not, therefore, clearly appear what (if any) amount would be due the defendant from the garnishee, and there was no basis for the j udgment .against him.

J udgment reversed.

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Yanderburgh, J.

The question here presented is the alleged liability of the garnishee in this, action, who had bought cattle of the defendant, under an agreement with him, in which he undertook to-pay him the balance of the consideration therefor, after paying certain specified sums owing to divers parties, and “as soon as the claims of E. Demming & Co. and Flanigan & Co. against said party of the first part [Dyer] have been settled.” Upon his disclosure, the garnishee stated that Demming & Co. and Flanigan claimed to hold mortgages on the cattle, which in fact appear of record, and their claims were still in dispute and unsettled between them and Dyer. The court thereupon ordered that these claimants be made parties. One of them came in, issues were framed, and upon the trial thereof his case was dismissed by the court, because he failed to establish any right to the balance of the purchase-money due from the garnishee. The other party claimant (Demming) did not appear. Judgment was thereupon rendered against the garnishee for the amount of plain[318]*318tiff’s claim against Dyer, the defendant. We think this judgment cannot stand. The fact that the claimants, who were not parties to ■or interested in the contract between the garnishee and the defendant for the sale of the cattle, did not make or establish any claim to the purchase-money, which Peck had not agreed to pay them, did not affect their rights as mprtgagees, or the validity of their claims against Dyer to secure which the mortgages were given; and it does not appear that their claims have been settled, or that they are invalid. They were interested as mortgagees, and Peck was not obliged to pay Dyer the balance until their claims were settled; and it does not, therefore, clearly appear what (if any) amount would be due the defendant from the garnishee, and there was no basis for the j udgment .against him.

J udgment reversed.

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Bluebook (online)

43 N.W. 65, 41 Minn. 317, 1889 Minn. LEXIS 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durling-v-peck-minn-1889.