Moore v. Heaney

Eccleston, J., delivered the opinion of this court. John Heany, the appellee, who was plaintiff below, obtained a judgment in the Court of Common Pleas for the City of Baltimore, at September term 1854, against Benjamin W. Quinlan. Upon this judgment an attachment was issued on the 4th of March 1856, and on the 17th of the same month was laid in the hands of “ Robert Moore, Charles Moore and Samuel Moore, trading under the name and style of Robert Moore and Brothers, as appears by .the Sheriff’s return. At September term 1856, the three Moores appeared and jointly pleaded nulla bona, upon which issue was taken.

The plaintiff filed interrogatories, to which the three Moores answered that they were not indebted to Quinlan at the time ⁵⁶⁰ the attachment was laid in their hands, and (hat he was not then, and had not since been, in their employment. The case was tried at May term 1857, when the jury rendered a verdict for the plaintiff for $95.58, against Robert Moore and Charles Moore, and in favor of Samuel Moore against the plaintiff. Judgments were entered accordingly, and Robert and Charles Moore appealed. The plaintiff’s right to recover under the attachment is based upon an alleged indebtedness from the garnishees, or some of them, to the defendant, under and in virtue of the following contract: “Agreement for the erection of a three story warehouse, made this twenty-ninth day of February 1856, between B. W. Quinlan, on the one part, and Robert Moore and Charles Moore, trading under the style of Robert Moore & Bro., on (be other part.

B. W. Quinlan agrees, for the consideration of five per cent, on the entire amount of cost of said building, to erect, superintend, and otherwise direct, the erection of the said three story building, to be situated on the rear of store No. 223,.Baltimore street, and further, that the work shall be done in a substantial and workmanlike manner, with as little cost and delay as possible, the said Robert Moore & Bro. to find all the materials and pay for the same, and it is understood that the said Quinlan shall not purchase any materials or contract for any work for the said building, without the consent of the said Moore & Bro., as to amount, quality and persons or person, of whom said materials are to be bought; and the said Quinlan agrees not to employ any workman or workmen but those who give satisfaction to the said Moore &• Bro., as to their ability, sobriety and diligence, the said Moore & Bro. agreeing to pay said Quinlan for his workman or his workmen in person, the amount of their wages, from week to week, at the expiration ©f each week, and it is expressly agreed, that no workman shall be left in arrear for work done on the said building, but every man must be paid in full for work done at the end of every week, and it is agreed that these articles of agreement be in force from the date of commencing to tear down the old building; and further, that nothing ⁵⁶¹ is due the said B. W. Quinlan until the entire work on the building is completed. Robert Moore Qr Bro. B. W. Quinlan.” The garnishees submitted four prayers, all of which the court refused, and gave the following instruction to the jury: “If the jury find from the evidence in the cause, that the defendant in the attachment made the contract which has been read in evidence, with the garnishees, or any or either them, as traders under the firm of Robert Moore & Brother, and that the defendant executed the said contract, and that there was due, or paid to the defendant, from the garnishees, or any or either of them, as co-partners, trading under the said style or firm, any sum of money after the issue of the writ of attachment in this case upon the account of the execution of the said contract, then the jury will find for the plaintiff the amount which they may find to have become so due, or to have been so paid, against such of the garnishees as they may find to have been co-partners of the said firm and parties to the said contract, provided, nevertheless, and the jury must so consider, that-the opinion of the court is, that no moneys paid under the contract to or for the workmen or laborers employed by the defendant, or lumber, or other materials purchased and paid for by the garnishees through the defendant and used in the execution of the contract, is