American Surety Co. v. Vandegrift Construction Co.

Citations

• 264 Pa. 193
• 107 A. 733
• 1919 Pa. LEXIS 618

Syllabus

<p>Attachment execution — Settlement of accounts — Evidence—Payment — Overpayment—Fraud.</p> <p>1. On an attachment execution, a judgment on a verdict in favor of the garnishee -will he sustained, where it appears that the defendant, a contractor, was building a railway for the garnishee; that, on a settlement of accounts between defendant and garnishee one week after the attachment was issued, it was discovered that the defendant, who had been paid for his work in bonds, had received by mistake or inadvertence $1'T,500 of bonds in excess of what was due him; that the bonds had been delivered to defendant without strict regard to estimates, as the work progressed, in order to facilitate their sale; and that these particular bonds had been delivered to defendant before the attachment issued, but that the credits therefore, by defendant’s direction, had not been made until after that date.</p> <p>2. In such a case the plaintiff cannot contend that since the bonds were given defendant, they belonged to him, and not to the garnishee, and that after the attachment was served, neither the status of such securities nor the proceeds from the sale thereof, could in any manner be changed by a settlement of the accounts between the defendant and garnishee in which plaintiff took no part.</p> <p>3. The real question was whether the garnishee owed defendant anything when the attachment was served. If, at the time, defendant was overpaid, and a balance of the account was due the garnishee, an adjustment in good faith of that balance, even after the date of the attachment, by paying back the proceeds from the sale of the bonds inadvertently advanced, could not make the funds thus received by the garnishee subject to the attachment, for these bonds, in reality, never belonged to defendant.</p> <p>4. On an attachment execution, where a traction company for which the defendant, under a contract, is building a railway, is served as garnishee, a claim that an initial payment in cash to