Helmer v. Geis

Adkins, J., delivered the opinion of the Court. John H. Geis & Company, appellee, sued out an attachment against Ira A. Doughty as an absconding debtor, and the attachment was laid in the hands of John P. Helmer a's garnishee. After the docketing of the suit Doughty confessed judgment in favor of appellee in the short note case for $2,235.59. This was on an account for materials furnished Doughty by appellee, most or all of which were for two houses which Doughty contracted to erect for appellant.

It is conceded that the attaching creditor’s rights against the garnishee are in no respect superior to those of the original debtor, and the creditor’s right to recover depends upon whether Doughty could have recovered in a suit by him against appellant. So the question here to be decided is, was appellant indebted to Doughty at any time between the laying of the attachment and the trial of the case. ⁸⁹ That question was fairly submitted, to tbe jury by plaintiff’s third prayer, which together with garnishee’s three rejected prayers will be set out by tbe reporter. Tbe fifteenth bill of exception was to tbe ruling on tbe prayers. Tbe garnishee’s first two prayers, while in form variance prayers, were obviously intended as demurrers to the evidence, and will be so treated.

These prayers are based on the theory that there was a special contract between Doughty and the garnishee and that the work to he done under it was abandoned by Dongbty before completion without legal justification. It is conceded that there was a special contract; and the law is well established that where such a contract is executory, and the plaintiff has performed part of it, and then without legal excuse refuses to perform the rest of it, he cannot recover either in a suit on the contract or on a quantum meruit. Denmead v. Coburn, 35 Md. 44 ; Cill v. Vogler, 52 Md. 663 ; Pope v. King, 108 Md. 45 ; Meyer v. Frenkil, 113 Md. 36 ; Turner v. Eagan, 116 Md. 35 ; Oldewurtel v. Bevan, 117 Md. 652 . But the evidence of plaintiff's tends to show that while Doughty left Baltimore during the progress of the work and was absent in Eorth Carolina, for about six weeks, he did not leave with the intention of abandoning the work and did not in fact abandon it; that at the time he left the houses were nearly completed, and