Lehigh Coal & Iron Co. v. West Superior Iron & Steel Co.

64 N.W. 746, 91 Wis. 221, 1895 Wisc. LEXIS 23

• Court: Wisconsin Supreme Court
• Decided: October 22, 1895
• Status: Published

Opinion

WiNSlow, J.

The appellant claims that the circuit court erred (1) in finding that the drafts did not pass from the control of the garnishee; and (2) in finding that the arrangement for the delivery of the drafts to Harriman was fraudulent.

The question whether the drafts, when in Harriman’s possession, were still under the control of the garnishee, is a vital one. If the circuit judge was right in finding that they were still under its control, then this judgment must be affirmed. This results from the application of well-understood legal principles. The drafts were not binding as contracts while undelivered. There is no claim of delivery, except of ;a delivery in escrow. ' To make a good delivery in escrow, the maker must part with the possession and divest himself •of all power and dominion over them; otherwise, there can be no escrow. Prutsman v. Baker, 30 Wis. '644. Conceding that Harriman, though an employee of the garnishee, might lawfully act as the depositary, still, if the fact was that he was to hold the drafts until he was ordered by the .garnishee to turn them over to the defendant, there was no delivery in escrow, because the garnishee retained absolute •control over them, and could, by keeping silent, prevent their delivery for all time. The circuit judge found that such was the fact, and the legal conclusion necessarily followed that the drafts were in fact undelivered, and that the debt due from the garnishee to the main defendant was simply a contract debt and subject to garnishment. If the •evidence justifies the finding of fact, the conclusion neces-' sarily follows. We are not prepared to say that the evidence is so clearly against the finding as to justify a reversal upon that ground. The evidence was all obtained from •officers of the two corporations,— the garnishee and the defendant,— and it is quite apparent that the witnesses were not willing witnesses for the plaintiff. There is certainly •considerable testimony tending to show that the arrangement was that Harriman should deliver the drafts to the furnace company immediately upon acceptance by the steel •company of the iron which they represented, but there is also testimony given by Harriman which tends directly to .•show that the agreement was that he (Harriman) was to hold the drafts until he was notified by the steel company of its . acceptance and directed to turn them over to the furnace company. In this state of the'evidence we do not feel justified in reversing the finding of fact of the trial court.

This conclusion renders unnecessary any discussion of the second question raised by the appellant, because, however that question may be decided, the judgment must be affirmed if there was no valid delivery of the drafts in escrow.

By the Oourt.— Judgment affirmed.

MaRshall, J., took no part.