#### H. W. Goodman for use of R. W. Rathborne, Jr., v. James E. Boyd et al.

Garnishment—Funds Held on Executory Contract—Board of Trade.

1. Funds belonging to a judgment debtor held by another on an executory contract are not subject to garnishment.

2. A commission firm which holds funds from a customer to protect *250itself as to trades made on the customer’s account, has no right to close those trades without orders from the customer (unless to protect itself from loss), because it has been served with garnishee process by a judgment creditor of the customer, although the closing of the trades on the date of the service of process might result in leaving in its hands funds to the credit of the customer.

[Opinion filed April 9, 1892.]

Appeal from the Superior Court of Cook County; the Hon. George H. Kettelle, Judge, presiding.

Mr. F. M. Charlton, for appellants.

Mr. Austin Bierbower, for appellees.

Shepard, J.

It appears from the record that in April, 1889, the appellant, Hathborne, recovered a judgment at law against Goodman, and subsequently sued out garnishee process against James E. Boyd & Brother, Henry Murphy and Edwin J. Moble, who, it was claimed, were indebted to Goodman, or had effects-or estate belonging to him in their hands. Samuel Boyd, one of the firm of James E. Boyd & Brother, and Henry Murphy, were duly served as garnishees on April 12th, the other garnishees not being found. The cause was submitted to the court for trial without a jury, and the court found the issues for the garnishees, the appellees in this court, and gave judgment for them. The only error here insisted upon is that the law applicable to the facts does not justify the finding of the issues for the garnishees by. the court below.

The evidence discloses that Goodman, the judgment debtor, had been a customer of the firm of James E. Boyd & Brother, who were commission merchants doing business on the Board of Trade, for a considerable time prior to the middle or latter part of March, 1889, when a difficulty about some transaction arising between him and Samuel Boyd, the resident member of that firm, the latter refused in behalf of the firm to have any more dealings with Good*251man, and directed Mm to cMse up Ms account with the house.

At that time Edwin J. Noble was in the employ of Boyd & Brother to do their trading on the floor of the Board of Trade. Goodman was an acquaintance of Noble and went to him and told of the trouble that had occurred with Boyd. There were then existing what are called open trades between Goodman and Boyd & Brother. After hearing what Goodman had to say, Noble went to Samuel Boyd and said to Mm : “ If you will allow Goodman to trade with you I will take care of his trades, and the fellow will have some trading. There is no use of throwing his business away.” Boyd replied: “ If you want to take charge of it and guarantee against his’loss, all right. I won’t be bothered Avith'it. I Avon’t have anything to do with him at all—with Goodman’s trades. You can do so if you Avant to.” And Noble in his testimony adds : “ So I did so, and Goodman kept money in my hands to secure margins from time to time.”

This occurred in the month of March, 1889, and on the 23d of that month the account of Goodman AAdtli Boyd & Brother Avas balanced by a check to Goodman for the amount to his credit, Avhich check Avas apparently passed over by Goodman to Noble, and held by the latter as a margin for pending trades of Goodman. These trades were not closed out but passed exclusixmly to Noble’s control, subject, of course, to the orders of Goodman so long as he should keep up his margins. After that time, Goodman gave' orders for trades directly to Noble and not to Boyd & Brother, as before, and more or less trading appears to have occurred on his orders. The commissions on trades thereafter made for Goodman by Noble Avere receixred by Boyd & Brother, and the account of the trades was carried right along on the books of Boyd & Brother, xvith the understanding, hoxvever, betxveen Boyd & Brother and Noble, that the latter would guarantee them on behalf of Goodman.

Although the evidence is not quite clear, it xvould seem that Goodman’s margins in the hands of Noble up to April *25212th, when the garnishee summons was served, on Boyd and Murphy, were ample to protect his trades, and that a balance of from twelve hundred to sixteen hundred dollars was to his credit on the basis of closing out all his deals at the market price, of that or the next day. Such being the situation of affairs, Noble, on April 13th, after hearing that Boyd & Brother had been garnisheed, met Goodman and said to him, “ There seems to be some suit or trouble and I don’t want to be bothered,” and gave back to Mm in cash and a check all excess held by him after evening up the trades at the then market ¡nice. Noble held at that time, according to his own testimony, somewhere between fifteen hundred and two thousand dollars of Goodman’s money, about twelve or fifteen hundred dollars of Avhieh consisted of a check made by Boyd & Brother, payable to Goodman but not indorsed by him. Upon the figuring up of Goodman’s deals as thejr then stood as compared with the market price of the day, there was some loss, the amount of Avhieh does not appear, chargeable to Goodman, and out of the moneys in Noble’s hands for margins Noble deducted such loss and gave back to Goodman the check of Boyd & Brother, and in other checks and cash, whatever the balance Avas that remained in his hands. From that time on the average course of the market Avent largely against Goodman. He responded to Noble as best he could for margins, so that, as Nobletestifi.es, he got back from Goodman for margins, a considerable part of the money he had on April 13th turned back to him, and on April 20 th Noble closed out the deals for lack of margins at a net loss to Goodman .of $2,481.50, being an excess of $281.50 over the money held at that time by Noble as margins, which deficiency Noble subsequently paid to Boyd & Brother. »

The facts as recited are not contradicted, and although there is other evidence in the record, they are abundant to amply justify the finding of the court below in favor of the defendant!;, Noble-was never serAred as garnishee, and if the moneys in his possession when the Avrit was served on Boyd and Murphy on April 12th Avere not, in the eye of the *253law, in the possession of Boyd & Brother, his employers, he could rightfully return to Goodman as much or as little of it as he might choose and not be liable to the appellant. But if, as is strenuously contended by appellant’s counsel, the money in the hands of Noble on April 12th, the date of serving the garnishee writ on Boyd, was in contemplation of law in the custody of Boyd & Brother, yet it was not subject to garnishment, it being held by them on an executory contract upon which nothing might ever become due from them.

The funds in the hands of Noble, if legally in the custody and control of Boyd & Brother, were there as security, under either an expressed or implied contract with the owner of them, for the protection of the Boyds against the trades they had made on Goodman’s account, which trades the Boyds had no right to.close out without Goodman’s consent or until it became necessary to close the deals in order to protect themselves from loss. There might never become anything due to Goodman after the closing of his trades. The liability of Boyd & Brother was uncertain and contingent. Hanover Fire Ins. Co. v. Connor, 20 Ill. App. 297, and cases cited; Webster v. Steele, 75 Ill. 544; Richardson v. Lester, 83 Ill. 55.

Judgment affirmed.