Mensing v. Engelke

Citations

• 67 Tex. 532
• 4 S.W. 202
• 1887 Tex. LEXIS 919

Syllabus

<p>1. Garnishment.—In contesting the answer of a garnishee, it appeared that between the service of the garnishment and the return day of the term on which the garnishee answered, he had received cotton under a contract with the debtor, made before the issuance of the writ, that it should belong to the garnishee and be under his absolute control until the payment of the debtor’s drafts cashed by the garnishee and drawn on his principals in the east, against the cotton purchased by the debtor for them and to be shipped east. The garnishee advanced in this manner, from time to time, money, with the distinct stipulation that any and all balances at any time due from the debtor to the garnishee on bank account were hypothecated to the garnishee until all amounts thus due were settled and all drafts cashed in the manner above referred to were paid; this being also as security against the failure of the debtor’s eastern principals, depreciation in the value of cotton purchased, and its loss by accident or ñre. Held:</p> <p>(1) The service of the writ could not work a change in the contract between the garnishee and the debtor, or compel the former to violate his contract in order to create a fund for the payment of the debts of the latter.</p> <p>(3) The contract could be carried out, notwithstanding the garnish-meat, and the garnishee could only be charged with the amount of such balances as might become due the debtor, or for such effects of his as might come to the garnishee’s possession.</p> <p>(3) The effect of the contract was to give the garnishee a lien upon the cotton bought and in his possession until the money advanced was repaid, and the plaintiff could only claim the excess of the proceeds of the cotton in the hands of the garnishee, over and above the amount necessary to satisfy that lien. There being, according to the facts found by the court, no such excess, it was further held:</p> <p>(4) To carry out the meaning of the contract, the cotton should have be