Strayhorn v. Webb, 47 N.C. 199, 2 Jones 199 (1855)

June 1855 · Supreme Court of North Carolina

47 N.C. 199, 2 Jones 199

WILLIAM F. STRAYHORN vs. JAMES WEBB.

If a debtor hands money to a third person, who promises to hand it to the creditor, the right to the money does not vest in the creditor, so as to make it his property, until he is notified of the transaction, and agrees to adopt the act of the third person in receiving the money as his own act, whereby the debt is extinguished.

This was a GARNISHMENT, tried before his Honol’ Judge Dice, at the Spring Term, 1855, of Orange Superior Court.

An attachment had been taken out against one Cheek, and the defendant was summoned as garnishee, who stated on oath, before the magistrate before whom the proceeding was returned, that “ Cheek was indebted to Long & "Webb, and to Long, Webb & Co., upwards of $200; and had frequently promised to pay them; and that, shortly before he made this affidavit, Cheek had told Webb, who was a member of both of these firms, and principally attended to the business of both, that he had sold to one Putzell, in Virginia, two damages, and that as soon as he should be paid for them, he would pay these two debts: that on the day before making this garnishment, one William McCauley handed him $190, which he said had been handed to him by Putzell for Cheek, and he left a receipt to be signed by Cheek as an acquittance of the debt from Put-zell : that Webb told McCauley what had passed between Cheek and himself, and applied the money to the payment of the above-named debts, due the firms of which he was a member : that this application was made on the day on which he was garnisheed, but before he was served with process, and after he had heard that Cheek had left home.”

The justice of the peace who tried the matter, gave judgment against Cheek and against Webb as garnishee, who appealed to the Superior Court of Orange. On the trial in the Superior Court, Putzell applied to the Court to interplead, which wTas refused. Webb then moved that an issue might be submitted to a jury, to try the facts of the case, alleging that “he could then make positive proof that McCauley was not the agent of Cheek in the transaction, and that a few days after the $190 was left for him with Webb, he. had demanded and received his debt from Putzell.”

The Court declined such an issue and proceeded to adjudge that the $190 in cpiestion, was the money of Cheek, and accordingly condemned it to the satisfaction of the debt of' the plaintiff. Prom which judgment Webb appealed to this Court.

Graham, for the plaintiff.

Norwood, for the defendant.

PeaksoN, J.

His Honor did not consider it material to be determined, whether McCauley, received the $190 as the agent of Cheek or not. According to the view we take of the case, this was a very material matter, and- was, in fact, the point upon which the liability of Webb, as garnishee, depended. If McCauley received the $190 as the agent of Cheek, then the debt of Putzell to Cheek was extinguished, and the $190 was the property of Cheek, which Webb was liable to be called upon to account for, at the instance of the plaintiff, who was a creditor of Cheek. If McCauley did not receive the $190 as the agent of Cheek, then the debt due by Putzell to Cheek was not extinguished, and remained a.s a subsisting debt, until Cheek did some act whereby to ratify and adopt the act of McCauley in receiving the money, so as to-extinguish the debt and make-the money his own.

This principle is settled in Carroway v. Cox, Busb. Rep. 173. If a debtor hands money to a third person, who promises to hand it to the creditor, the right to the money does not vest in the creditor, so as to make it his property, until he is notified of the transaction and agrees to adopt the act of the third, person, in receiving the money, as his own act; whereby the debt is to be extinguished. •

There was error in giving judgment against "Webb in the absence of proof that McCauley had received the $190 as the agent of Cheek

Pee Curiam. Judgment reversed.