
    John Williams v. Piner & Co.—Grant & Barton, Intervenors.
    P. & Co. shipped to T. in New Orleans a lot of cotton, the proceeds of which were to be forwarded to G. &B. of New York. This arrangement was acceded to by G. & B., who wrote to the consignees, ¡prior to the attachment, to remit to them the proceeds of sale. Held: The cotton could not be attached as the property of P. & Co.
    PPEAL from the Second District Court of New Orleans, Lea, J.
    
      Benjamin, Bradford & Finney, for plaintiff.
    
      J. Livingston, for intervenors appellants.
   Ogden, J.

This suit was brought by attachment against F. D. Finer & Ira McKinney, and against the commercial firm of F. D. Finer & Go., of which the said Piner & McKinney are alleged in the petition to be the sole members. £. Yeatman & Go., cited as garnishees, and required to answer whether tliey had effects in their hands belonging to F. D. Piner and Ira McKinney, or to one of them, or to the firm of F. L). Piner & Go., answered negatively, with a qualification to the following effect: that they had received eighty-seven bales of cotton under a bill of lading annexed to their answer; that they had received a letter from Grant & Barton, of Philadelphia, (through their agent,) whoso names appear on the bill of lading, and that by said letter they were given to understand that the cotton was shipped by Hastings & McGracken for the firm of Piner & Fiser, for account of the parties mentioned in the bill of lading, and that by the letter they were requested to forward to Grant & Barton the proceeds of the cotton shipped for their account. The garnishees stated further, that since the attachment had issued, they had received a letter from F. D. Piner, surviving partner of Piner <& Fiser, informing them of the shipment and requesting them when the cotton was sold to forward checks for the proceeds to the houses mentioned in the bill of lading. A memorandum in the bill of lading shows that 17 bales of the 87 wore shipped for account of Grant & Barton, New York, who, as intervenors, have set up a claim to the proceeds of the sale.

The plaintiff’s petition was filed June 22d, 1S52, and the attachment was levied on the same day. The bill of lading is dated at Cold Water, in the State of Mississippi, April 20th, and the garnishees state the cotton was received on the 1st of May. By the evidence, it appears that they use two separate and distinct firms in Mississippi, of Finer & Fiser, and F. D. Piner & Go., the latter being composed of F. D. Piner and Ira McKinney. F. D. Piner was also one of the firm of Piner & Fiser. The latter firm of Piner & Fiser were indebted to Grant & Barton, of Philadelphia, who held their note at the time of this transaction, past due, for the sum of $516 25. Ira McKinney, who testifies in the case, states: “The firm of Piner & Fiser, by M. D. Fiser, made an arrangement with me as the firm of F. D. Piner & Go., to pay to Grant S Barton the proceeds of seventeen bales of cotton, by which arrangement F. D. Finer & Go. let Piner & Fiser have the 17 bales of cotton, which I caused to be shipped at the instance of M. JD. Fiser, with other cotton, to Cold Water, to Hastings & Me Gradeen, shipping merchants, and which I entrusted them to ship to B. Yeatman <& Go. New Orleans, on account of Grant & Barton.” This, it is contended by the counsel for the intervenors, was an agreement between the two firms, for the benefit of Grant & Barton, the creditors of Piner & Fiser, which, according to Article 1884 of the Civil Code, Grant & Barton, although not parties to it, have a right to enforce; and the case of Bonnefe & Co. v. McLane, 5th Ann. 225, is relied on in support of that position. If there was no proof of the arrangement in favor of Grant & Barton having been accepted by them previous to their attachment, it might perhaps still be contended that F. JD. Piner & Go., to whom the cotton at first belonged, having come under the obligation towards Piner & Fiser, of shipping it to New Orleans, to be sold for the benefit of Grant & Barton, that the cotton, having been thus shipped in pursuance of the agreement, the consignees, Yeatman & Co., held it and the proceeds of it when sold, in trust for Grant & Barton, for whoso benefit the agreement was made; that by receiving the cotton under such a bill of lading, Yeatman & Co. accepted a trust in favor of a third person, from which they would not have been discharged by paying the money over to either F. B. Piner & Co. or to Piner & Fiser, without the consent of Grant & Ban'ton, or without having first notified them of their acceptance of the trust, and permitting a sufficient time to elapse from such notification to justify the belief that Grant & Barton did not design to avail themselves of the benefit of the stipulation in their favor. We are relieved, however, from the necessity of deciding that question, because from the answers of the garnishees, it appears that Grant & Barton did accept the arrangement which was madoin their favor, and wrote a letter to Yeatman & Co., requesting them to forward the proceeds of the cotton. That the letter written to this effect, by Grant & Barton, was received by Yeatman & Co. prior to the attachment, we think may be inferred from the answers of the garnishees. They state first, that such a letter had been received from Grant <& Barton, without saying whether it was received prior or subsequent to the attachment, and immediately afterwards proceed to say, that since the attachment issued in the case, they had received a letter from the surviving partner of Piner & Fiser, informing them of the shipment. The cotton rvas shipped two months previous to the attachment. Ample time had intervened for Grant & Barton to receive information of the arrangement in their favor and instruct Yeatman & Co. on the subject, before the attachment was levied. The garnishees, by stating that the letter from F. B. Piner was received since the attachment, left it to be inferred that the letter from Grant & Ban'ton had been received prior to that time. At all events, it was the duty of the plaintiffs, under these circumstances, if they thought it left doubtful by the answers, to have given the garnishees an opportunity to explain. They were mere stakeholders, and had no interest to answer evasively.

There being no charge of fraud or combination between any of the parties to the injury of the plaintiffs, we think, on legal principles, the intervenors are entitled to a judgment in their favor for the proceeds of the seventeen bales of cotton received by the garnishees for their account.

It is therefore decreed, that the judgment of the Court below, as regards the claim of the intervenors, Grant & Barton, be avoided and reversed, and that there be judgment in favor of said intervenors against F. B. Piner, as member of the firm of Piner S Fiser, for five hundred and sixteen dollars twenty-five cents, with seven per cent, interest from Feb. 7th. 1852, until paid ; that the plaintiff’s attachment as regards the seventeen bales of cotton in controversy be dismissed, and that the proceeds of said cotton, in the hands of the garnishees, P. Yeatman & Co., be applied to the payment of the judgment in favor of the intervenors — the costs in both courts to be paid by the plaintiff and appellee.  