Gardner v. Pioneer-Pacific Worsted Co.

FINCH, P. J.

This is an action to enforce the defendant’s alleged liability as garnishee. Judgment was entered in favor of the plaintiff and the defendant has appealed.

November 3, 1924, the plaintiff commenced an action against Lemuel J. Coburn to recover moneys alleged to be due and owing to him from Coburn. A writ of attachment was duly issued in that action and served upon the defendant herein on November 5, 1924, the plaintiff claiming that the defendant was indebted to Coburn. The plaintiff recovered judgment against Coburn and, the judgment remaining unsatisfied in the sum of over $11,000, this action was commenced on July 19, 1926.

[19]

In addition to the foregoing facts, the complaint alleges, on information and belief, that at the time the writ was served on the defendant it was indebted to Coburn in the sum of $52,000 and that thereafter, on April 14, 1925, the defendant, “by way of compromise and settlement, paid to said Lemuel J. Coburn the sum of $5,000.” The answer denies that the defendant was, at any time, indebted to Coburn in any amount. In relation to the issue thus raised the court found as follows:

“That ... at the time that said writ . . . was served upon the defendant, . . . the said Lemuel J. Coburn had an unsettled claim and/or demand against said defendant, and thereafter, to-wit, early in the month of April, 1925, said Lemuel J. Coburn presented to said defendant for settlement a claim in the sum of $52,915.17, and the said defendant did, on April 14, 1925, by authority of its Board of Directors, at a meeting of said Board duly assembled and after a vote of a majority of the Board of Directors present at said meeting pass a resolution in which it was stated that it did not admit any liability to said Lemuel J. Coburn, but, for the purpose of compromise and settlement and in full settlement and compromise of any and all claims and demands which said Coburn may have or claim to have against the Pioneer Pacific Worsted Company, authorized and ordered that said defendant pay unto said Lemuel J. Coburn the sum of $5,000 whereupon and by virtue of said resolution said Lemuel J. Coburn did accept the sum of $5,000, by way of compromise, release and discharge, and in full settlement of all claims and demands that he may have or might assert against said Pioneer Pacific Worsted Company, and thereupon there was paid by said defendant to said Lemuel J. Cobum, after the Writ of Attachment and Garnishment was served upon said defendant, as aforesaid, the sum of $5,000, and by reason of said payment said Coburn did release and discharge said defendant from any and all liability and demands whatsoever.”