Holder Lumber Co. v. Scarborough

JAMES, J.

Appeal taken from a judgment entered against defendant Scarborough, and from an order made denying his motion for a new trial.

The action was brought on the part of the plaintiff as a judgment creditor of one Nellie R. Higgins to recover the sum of nine hundred and forty-six dollars, which it was alleged was owing by the defendants to the said Nellie R. Higgins at the tim.e process of attachment under a writ of execution was served by the plaintiff upon defendants. By the answer of defendants it was denied that at the time of service of such writ any money was due or owing from the

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said defendants to said Higgins. The facts as to the plaintiff being the judgment creditor of the said Higgins and as to the regularity of the service of the attachment process, were admitted. The principal point presented for consideration, therefore, is as to whether under the facts shown in the statement of the testimony as contained in the bill of exceptions defendant Scarborough was indebted to Nellie R. Higgins in any amount at the time such alleged debt was attempted to be attached in his hands. In considering the testimony it should be remembered that the construction to be given to it must be that which will support the judgment of the court-, if reasonable conclusions based thereon so warrant, and that any conflict in the testimony must be resolved against the appellant. Nellie R. Higgins testified in brief that she procured a loan of two thousand dollars from appellant with which to erect a building on a lot which she had purchased from one Firth. She stated that the understanding was that appellant was to hold the money secured as a loan and pay it out whenever orders were made by her for the payment of accounts for materials used in the building. She stated that after four or five hundred dollars had been paid out she had given the plaintiff here an order for the amount of its account, but that only one hundred dollars thereof had been paid by appellant. She stated that there was no written agreement made governing the matter of payment of the money, but that it was distinctly understood that the money should be paid out whenever ordered by her. This statement was in direct conflict with the testimony of appellant and other witnesses heard for the defendants, who testified that the money was only to be paid out as the building reached certain stages in its -construction. However, as has been before stated, any testimony which tends to support the judgment must on this appeal be considered as stating the facts. Other testimony introduced showed that the plaintiff here had furnished material for the erection and construction of the building amounting to the sum of one thousand and twenty-one dollars, and there was no dispute but that this material had been incorporated in the building. Every reasonable inference from the direct testimony given is in support of that fact. After refusal had been made on the part of appellant to pay the amount of the plaintiff’s bill for material, work on the building was stopped and the holder of a trust-deed which