J. Cueva Co. v. R. Lancaster Williams & Co.

Urner, J., delivered the opinion of the Court. An attachment issued on a judgment was laid in t-he hands of the appellee as garnishee of Consolidated Pocohontas Coal Company. The judgment had been obtained by the appellant on a claim against that company for commissions on sales, of coal to the Government of Chile. The garnishee corporation denied that it had any funds or credits of the judgment debtor at or since the issuance of the attachment, and the only question to> be determined is whether there is any legally sufficient evidence: in the record to the contrary.

It was agreed by the coal company that directions for the payment of the commissions, for which the appellant subsequently recovered its judgment, should be given to the appellee as the company’s, bankers. That agreement was embodied in a letter from the company to the appellant dated October 23, 1920. The material portion of the letter is as follows: “You are advised that we will this day advise our bankers, E. L. Williams & Co., Inc., under the Chilean Government coal contract of October 22nd, 1920, to deduct and remit to you forthwith thirty cents (30c.) from sight drafts as presented upon each gross ton accepted and paid for by tbe Chilean Government through such banker as, if and when such sight drafts are presented and paid. No payments to he made you, however, upon tonnage which may, through cancellation of the contract or otherwise not delivered and paid for under said contract.” The promised instructions as to the payment of the commissions were given to the appellee, and were fulfilled with respect to settlements for eight steamer cargoes of coal, aggre ⁵²⁸ gating 42,737 tons shipped to the 'Chilean Government from December 4, 1920, to March 7, 1921.

A succeeding shipment of 6,735 tons was made and accepted, but the commissions, .amounting to $2,020.50, on that shipment were not paid, and a suit against the coal company for their recovery resulted in the judgment on which the attachment in this case was issued. The judgment was rendered in February, 1923, nearly two years after the time of the shipment on account of which the commissions were claimed. The payment of the commissions was suspended because of complications arising from a claim by the coal company that the Government of Chile had committed a breach' of contract by refusing to' accept another 'shipment of coal. This was explained in a letter from the •appellee to the appellant, under date of June 20, 1921, as ■follows:. “We have your telegram of this morning inquiring as to when we will pay you your commission claimed under the shipment of the last cargo of coal by the Consolidated.

Pocohontas Coal Company to the Olrilean Government. The coal company, as you no doubt know, claims that the Chilean Government has breached its contract in refusing to accept another cargo and have had their attorneys serve notice on us that they are claiming all funds in our hands and will hold us responsible for a$y funds paid out. We are securing advices from our counsel as to whether we are authorized to send you a check for the amount claimed by you. We believe that we will be advised that we are authorized to send you this check, when we will promptly do so.

We will, we expect, be advised on this point some time during this present week.” A letter dated March 7, 1923, from the appellee to counsel for the appellant was produced. It stated in part: “This firm was directed by the Consolidated Poeohontas Coal Company to make payments to Cueva Company from drafts submitted to us for payment out of tbe funds on deposit, which we continued to do until we were advised by the coal