Swisher v. Fitch

delivered the opinion of the court.

This case is brought here by writ of error to the circuit court of Holmes county.

Fitch & Brown, use, &c., who had obtained a judgment against Samuel Swisher, sued out a summons under the statute against John M. Maury, as garnishee. Maury answered, in substance, that, before the service of summons, he had hired the services of Samuel Swisher for a year, at the rate of nine hundred dollars for that time; that soon after, and before the service of summons, he had agreed to pay the amount of wages to Swisher’s father, to whom Swisher said he was indebted, and who acceded to the agreement. He likewise stated, that, from the period of the agreement, he ceased to consider himself indebted to said Samuel Swisher, but to the father only. He stated the amount due from him to the father, to be $411 Upon plaintiff’s motion below, for judgment upon the answer, the court gave judgment against Maury, for the aforesaid amount.

We conceive the court below erred widely in this judgment. The statement of Maury shows clearly a special agreement between him and Swisher’s father, at the instigation of the son, to pay him the wages due, and to become due to the son. This could be inforced by the father against Maury. Such an agreement once being made, it was not in the power of the son to *545revoke it without the father’s consent. There is nothing in the circumstances as stated by Maury, to infer fraud in the transaction ; and the court have no right to presume it existed”, Maury states distinctly, that after the agreement, he ceased to consider himself indebted, or to become indebted to the son on their contract, and that he did consider that he owed and would owe the father. The plaintiffs below having waived their right to an issue before a jury to inquire into the true facts of the case on which thé question of fraud, if need was, could have been fully tested, the court was bound to take the answer as embracing the real facts in the case; and upon that, the garnishee was clearly entitled to his discharge.

The judgment below must be reversed; and, as we must give the judgment which the court below should have given, it is directed that the garnishee, the said John M. Maury, be discharged upon his answer.