Clecak v. Dunn

DOOLING, J.,

pro tem.

Plaintiff and appellant, who is the divorced wife of respondent John A. Clecak, on June 14, 1926, procured a writ of execution for unpaid alimony in the sum of $2,078 to he levied on the respondents W. F. Dunn and J. A. Williams, copartners doing business as Dunn-Williams Co., to garnish a debt alleged to be owing from said Dunn and Williams to respondent Clecak. Dunn and Williams, by return to the levy, denied any indebtedness to Clecak. Thereafter, on June 26, 1926, appellant commenced this suit in equity seeking a decree establishing the existence of said alleged indebtedness and compelling its application in satisfaction of said judgment for alimony. Respondents answered, admitting that the respondent Clecak had earned a certain commission of $1,500 by reason of an exchange of two parcels of real property in the negotiation of which he had acted as one of the brokers, but alleged that nothing was due or owing from respondents Dunn and Williams to respondent Clecak by reason of the following facts: That on January 19, 1926, Dunn and Williams had become the accommodation makers with Clecak of one promissory note for $4,000 and had unconditionally, guaranteed the payment of another note executed by Clecak for $6,000; and that coincident therewith, as security against loss by Dunn and Williams in case they should be compelled to pay all or any part of such notes, Clecak had executed and delivered to Dunn and Williams his promissory note for $10,000 and “it was then and there agreed by and between the said W. F. Dunn and J. A. Williams, doing business as the Dunn-Williams Co., and the said John A. Clecak, that any commissions due or owing or belonging to the said John A. Clecak through or from the Dunn-Williams Co.

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should not be paid to said John A. Clecak, but should be credited on account of said promissory note or on account of the said two obligations for which the said Dunn-Williams Co. were guarantors for the said John A. Clecak, at the option of the said Dunn-Williams Co.”; and that the $1,500 commission earned by Clecak was accordingly not due or owing to Clecak, but “to pass as a credit on the account of John A. Clecak with W. F. Dunn and J. A. Williams on account of the aforesaid agreements.” The evidence showed without conflict that the $1,500 was earned by Clecak as a commission from Dunn and Williams for the exchange of a hotel building in which Dunn and Williams had a one-half interest, that only a small part of the notes for $4,000 and $6,000, respectively, had been paid, and that on June 30, 1926, Dunn and Williams, acting pursuant to their claimed rights under their agreement with Clecak, entered a credit on their books of $1,500 in favor of Clecak on his $10,000 note held by them.