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Terry v. Owatonna Canning Co.

Decided: January 26, 1938.

ETHEL TERRY, BY HER NEXT FRIEND, LAURA TERRY, AND LAURA TERRY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
OWATONNA CANNING COMPANY, A CORPORATION, DEFENDANT-RESPONDENT



On appeal from an order of the Supreme Court.

For the plaintiffs-appellants, Harry Tartalsky.

For the defendant-respondent, Edwards, Smith & Dawson.

Donges

The opinion of the court was delivered by

DONGES, J. The plaintiffs-appellants commenced action against defendant-respondent by writ of attachment, issued September 21st, 1936, and made returnable on October 19th, 1936. The return shows that the sheriff of Hudson county, by a special deputy sheriff, executed the writ "by going to Marigold Grocery Company, at No. 88 Cambridge avenue, Jersey City, served a copy of the within attachment on Harry Goldberg, Secretary of, and then and there, in the presence of the said Frank Halligan, declared that I attached the rights and credits, moneys and effects, goods and chattels, lands and tenements of Owatonna Canning Company, a corporation, the said defendant, at the suit of Ethel Terry, * * *."

The inventory and appraisement concludes as follows: "Attached all moneys, rights and credits, of the above defendant, in the hands of Marigold Grocery Company, at 88 Cambridge avenue, Jersey City, now due or to grow due the within named defendant. Appraised at Unknown."

A rule to show cause was allowed why the inventory and attempted levy on moneys of defendant alleged to be due or to grow due from Marigold Grocery Company should not be set aside and for nothing holden.

On May 1st, 1937, a rule was entered by Chief Justice Brogan making the rule to show cause absolute, and ordering that the return, and the inventory annexed thereto and the purported levy be quashed and set aside. From that order this appeal is taken.

The decisive question is whether or not there were moneys, rights and credits of the defendant, in the hands of Marigold Grocery Company, due or to grow due, at the date of the inventory and purported levy. We conclude that there were not and that the rule appealed from was properly entered.

It appears that on or about June 13th, 1936, a sales contract was entered into between Owatonna Canning Company and Marigold Grocery Company, by which one thousand cans of corn were to be shipped sometime in the future, the contract providing "Delivery when packed." It was further provided that seller was not to be liable for short, late or nondelivery of the goods resulting from damage to crops, strikes, fires, floods, unavoidable casualties or other circumstances beyond its control, except that, in the event of casualty or crop failure, proportionate delivery should be made to all buyers, without discrimination, of such stock as remained in the seller's possession.

The writ was attempted to be served on September 21st, 1936, at which time no goods had been shipped by defendant to Marigold Grocery Company, and nothing was due from it to defendant. The goods were shipped and invoiced on October 14th, 1936, and were received in Jersey City on October 23d, 1936. On October 15th, 1936, ...


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