Messall v. Suburban Trust Co. , 244 Md. 502 ( 1966 )

Hammond, C. J.,

delivered the opinion of the Court. Barnes and McWieeiams, J'J., dissent. Dissenting opinion by Barnes, J., at page 511, infra.

Messall and Howe, the appellants, obtained a judgment for $34,484 against Merlands Club, Inc. and on July 29, 1964, laid an attachment in the hands of Suburban Trust Company in which Merlands had an account. Merlands had previously borrowed $11,800 from Suburban, the loan being evidenced by an unsecured promissory note dated September 25, 1963, payable at the rate of $400 per month on the twenty-fifth day, with 6°/o interest. An acceleration clause provided that upon nonpayment of any monthly installment when due, “all remaining installments shall immediately become due and payable, at the option of the holder.” At the time the attachment was laid the note was current, $7,800 principal amount was still due, and Merlands had on deposit $15,352.31. Counsel for Messall and Howe went with the sheriff to the bank when the attachment was laid and learned of the amount of the deposit. The next day the bank made entries indicating the set-off and returned the note marked paid to Merlands. On August 4 Suburban filed its answer as garnishee, confessing assets due Merlands of $7,545.81 ($15,352.31 less the $7,800 principal balance of the note and interest of $6.50). On September 23 Messall and Howe took the deposition of an officer of Suburban and verified the terms of the note and the trust company’s action in taking the set-off. On October 8 they filed exceptions to the garnishee’s answer, alleging that the note was not in default when the attachment was laid or the answer filed, “the July payment having been made and the next payment not being due until August 25, 1964” and that the off-set was improper and contrary to law.

On December 22, 1964 Messall and Howe withdrew the exceptions and prayed that the hearing of the case be advanced. On the same day Suburban -wrote to Merlands that, as it had previously advised Merlands on July 30, 1964, it had charged Merlands’ checking account in the amount of $7,806.50 in payment of its note, and added:

“We are now informed by our Counsel that there is some question concerning our legal right to charge your account on that date inasmuch as the loan was not in default at that time. Pursuant to his advice, we are therefore making demand upon you to pay the four installments of $400.00 each which became due on the 25th day of August, September, October and November. Likewise, the installment due on the 25th of this month should be paid on or before the 28th.

“Unless we receive the sum of $2,000.00 on or before the 4th of January 1965 we shall have no recourse but to exercise our option of accelerating the note pursuant to its terms and will consider the entire balance thereof due at that time.”

No response was made to this letter and the case was tried in June 1965. On July 9 following, Judge Pugh found for the garnishee and on July 19 granted a judgment of condemnation absolute for $7,545.81 against Suburban with interest from July 29, 1964. Messall and Howe appealed from that judgment. We find Judge Pugh to have reached the correct result.

Many decisions of this Court have established that in essence and effect garnishment is a suit by the debtor against the garnishee for the use and benefit of the attaching creditor and, therefore, the holdings have been that the rights of the creditor vis a vis the garnishee cannot rise above those of the debtor. The liability of the garnishee to the attaching creditor in respect of property or credits in his hands is determined ordinarily by what his accountability to the debtor would be if the debtor were in fact suing him. If by the exercise of any preexisting bona fide contract right that accountability has been removed or lessened prior to trial, the garnishee’s liability to the attaching creditor is correspondingly affected. The Maryland cases have spelled out that garnishment cannot have the effect of changing the nature of a contract between the garnishee and the debtor or of preventing the garnishee from performing an existing contract with a third person, all of which is to say the creditor is subrogated to the rights of the debtor and can recover only by the same right, and to the same extent, as could the debtor if he were suing the garnishee. B. & O. R. R. Co. v. Wheeler, 18 Md. 372, 378-79; Farmers and Merchants Bank v. Franklin Bank, 31 Md. 404; Odend’hal v. Devlin, 48 Md. 439; Farley v. Colver, 113 Md. 379, 385; Cole v. Randall Park Holding Co., 201 Md. 616, 623-24; Thomas v. Hudson Sales Corp., 204 Md. 450, 457.

The rule as to when the rights of the parties in attachment become fixed varies. Most jurisdictions apparently hold that it is at the time of the laying of the attachment. Some set it at the time the answer of the garnishee must be filed. Maryland early adopted the rule that the time of trial and judgment controls. Nicholson v. Crook, 56 Md. 55, 57, adopted the rule of most jurisdictions that the attachment binds “not only the property of the defendant in the hands of the garnishee at the time it is laid, but also such property as may come into his hands at any time before trial and judgment” and earlier Farmers and Merchants Bank v. Franklin Bank, supra, facing the other side of the coin, held that where funds in a bank to the credit of a depositor are attached the bank may appropriate such funds to the payment of a debt to itself which had been contracted before the attachment but did not fall due until after the attachment and before trial. Judge Alvey, for the Court, said (pp. 412-13 of 31 Md.):

“There is nothing in the attachment law of this State to justify the conclusion that it was designed, by allowing garnishment to be made, to place the garnishee in a worse position, in reference to the rights and credits attached, than if he had been sued by the defendant. The attaching creditor seeks to have himself substituted to the rights of his debtor as against the garnishee, and by laying his attachment, he acquires no superior right to that of his debtor. The right of condemnation must, therefore, be subject to any such right of set-off or discharge existing at the time of garnishment, as would be available to the garnishee if he were sued by the defendant. Any other rule would, in many cases, work gross injustice, and might, moreover, be subject to great abuse.

“What, then, were the rights of the garnishee in respect of the fund attached, if it had been sued for by the defendants, Mitchell and Oliver? As against them, there could be no question of the right of the bank to retain the amount on deposit to their credit in part payment of the debt against them, provided such debt was due and payable to the bank at the time of trial. Union Bank v. Cochran, 7 G. & J. 138; Jenkins v. Walter, 8 G. & J. 218; Clarke v. Magruder, 2 H. & J. 77; Foley v. Mason, 6 Md. 51. The only question, therefore, is whether the attachment having been laid on the 11th of May, 1867, and the note then held by the bank against the defendants for $4,500 not maturing until the 17th of June, 1867, the garnishment so affected the fund, or changed the relation of parties, as to defeat the right of set-off which would have been complete as against the defendants on the maturity of the note. We think not. For though the note was not due at the time of garnishment, and was not, therefore, actionable, it was, nevertheless, an existing debt, payable at a future time, and becoming due before trial, was good matter of set-off, as well against the attaching creditor as against his debtor.

“This right of set-off or discharge, as against the attaching creditor, should not, however, extend to any matter originating by the action of the garnishee, subsequent to garnishment, as otherwise it would be in the power of the garnishee in a majority of cases to defeat the right of condemnation, which should not, by any means, be allowed.”

See also B. & O. R. R. Co. v. Wheeler, supra, as to permissible exercise of preexisting contract rights by the garnishee prior to trial.

The rule announced in Franklin Bank has been the law of Maryland since it was enunciated. Franklin Bank was cited in Richardson v. Anderson, 109 Md. 641, 647-48, for the proposition that a bank may, as against an attaching creditor, apply funds of a depositor in its possession to the payment of any claim it has against the depositor “though its claim may not be due at the time of such attachment,” and its holding was relied on in Hayden v. Citizens’ Nat. Bank of Baltimore, 120 Md. 163, 166-67, as in part determinative of an analogous matter. Judge Henderson, for the Court, said in Maryland Cooperative Milk Producers v. Bell, 206 Md. 168, 174, in discussing a right to make a set-off:

“Indeed, the Maryland cases seem to recognize a right of set-off as against an attaching creditor even where the obligation of the debtor is not due at the time of the attachment but becomes due before trial. Farm. & Merch. Bk. v. Franklin Bk., 31 Md. 404, 412.”

Massachusetts also recognizes that the garnishee has a right of set-off as to an obligation of the debtor not due at the time of attachment but maturing before trial. Eddy v. O’Hara, 132 Mass. 56, 61; Sternheimer v. Harris, 148 N. E. 447; Lannan v. Walter, 20 N. E. 196. The Supreme Court in North Chicago Rolling Mill Co. v. St. Louis Ore & Steel Co., et al., 152 U. S. 596, 621-22, 38 L. Ed. 565, 573-74, referred to several Massachusetts cases and quoted Franklin Bank. The Court then noted that in each of the cases it had cited on the point the liability of the garnishee was “conditional and undeterminate” at the time of service of the garnishment process and his right to claim against the principal debtor did not become fixed until long thereafter and in all but one case the right to set-off arose under a contract which had been entered into before the service of the writ. The Court went on to say:

“The latter clause of the quotation from the case of Farmers’ & Merchants ’Bank v. Franklin Bank, supra, lays down the correct rule to be applied in cases of this character, and that rule is, that, while the garnishee may not, after service of the writ, by his own action acquire set-offs or counter-claims against the principal debtor to the prejudice of the attaching creditor, he may properly avail himself of all claims fairly arising out of contracts with the principal debtor which were in existence when the attachment was commenced, and under or out of which his claim against the principal debtor arises.”

We see no reason why Franklin Bank should not be adhered to and find it to control the case before us. Suburban concedes, as we think it must, that it had no right to off-set the Merlands note when it first attempted to do so on July 30, the day after the filing of the attachment, because the note was not then due. Its effort to do so would have been nugatory if trial of the attachment case had occurred before the note became payable in full because at that point the law did not permit an off-set. But before trial Suburban acknowledged its ineffectual error and gave Merlands an opportunity to make the note current. When this was not done, Suburban exercised its bona fide contract right which existed at the time the attachment was laid to accelerate the unpaid balance of the note and declare it immediately payable in full. Under the cases it had a right to do this as is illustrated by the fact that at the time of trial, if Merlands had been the plaintiff suing Suburban for the $15,352.31 it had on deposit on July 29, the day of the laying of the attachment, Suburban could have defended successfully and would not have been liable to pay Merlands the $7,806.50 which it had used to pay off Merlands’ defaulted note. Messall and Howe had no rights at the time of trial below greater than those Merlands would have had had it been plaintiff.

The rule of set-off has equitable backgrounds. The trial court’s action in the instant case was not inequitable under the rules the cases have established. Under no circumstances could Merlands have used any of its deposit to make the monthly payments on the note since the $15,352.31 it had in Suburban was all subject to the attachment in aid of the $34,484 judgment. Messall and Howe were fully aware long before trial of the existence and terms of the note and of the bank’s intention to pay it off from Merland’s balance on deposit. Assuming that they could have, they did not offer or attempt to step into Merlands’ shoes and make the monthly payments. Indeed, if they had, equitably they could not have made some payments to serve their own purposes without assuming liability for the full balance of the note, and had they done this they would have gained nothing. If Suburban had not attempted to pay the note in July and had waited until it became in default in August and then accelerated the balance due and paid itself, it, beyond question, would have been on sound ground and immune to challenge for its actions. The false step it took, which it corrected in time, hurt no one under the circumstances and we find that the result should be as it would have had the false step not been taken.

Judgment affirmed, with costs.