Kruse v. Wilson

[92]

HARRISON, P. J.

Appeal from judgments rendered sustaining demurrers to an amended and supplemental complaint.

The complaint is in two counts, in the first of which the plaintiff alleges that the defendants Newsom and McNeil were contractors for the construction of a public school building in San Francisco, with whom the defendant Wilson had contracted to perform the labor and furnish the materials for the plastering in said building; and that the plaintiff had sold and delivered to Wilson laths and lumber therefor of the value of $343.74, which had been used for said plastering, and that no part thereof had been paid. In the second count, the complaint alleges, in addition to the foregoing, that the building was completed and accepted September 17, 1903; that after its completion, and prior to September 23, 1903, Newsom and McNeil were paid the full contract price therefor; that the present action was commenced September 23, 1903; that at the time of its commencement the plaintiff caused a writ of attachment to be issued therein, and that on the same day, by virtue thereof, the defendant John Lachman, as sheriff of San Francisco, garnished all moneys due or owing the defendant Wilson by said Newsom and McNeil; that at the time of the service upon them of said garnishment they had in their hands the sum of $343.74 owing by them to Wilson for labor performed and materials furnished by him in construction of said building, which materials had been purchased by him from the plaintiff; that prior to the commencement of the action the plaintiff informed them of his claim against Wilson, and that they promised to hold said funds until the court should determine to whom they belonged; that after said garnishment they paid the said sum of $343.74 to the sheriff, and directed him to apply the same to the payment of an execution then in his hands against Wilson in favor of one Clark, under which the sheriff had, on September 12th, garnished any moneys then owing by them to Wilson. It is also alleged that the judgment in favor of Clark, upon which said execution was issued, was rendered March 18, 1903, upon a cause of action entirely disconnected with the construction of the building or materials therefor. Although the default of the defendant Wilson was entered, the judgment as rendered was in favor of all of the defendants, but the plaintiff has ap