1 Reported in 216 N.W. 249, 218 N.W. 99. Prior to and at the time of her death, Bella W. Smith, deceased, was engaged in the manufacture and sale of millwork under the firm name and style of Smith Sash Door Company. Thereafter the defendants Smith were duly constituted executors of her estate and, pursuant to an order of the probate court, continued such manufacturing and sale business under the same name.
Subsequently plaintiff brought an action against the executors to recover the purchase price of certain building material alleged to *Page 506 have been sold to such executors. Garnishment proceedings were instituted, and the garnishee summons was served upon the appellant, Jacob Fine, on August 27, 1926. Thereafter plaintiff procured an order substituting R.J. Powell as administrator de bonis non of the estate in place of such executors. Judgment was finally entered in favor of plaintiff and against the substituted defendant in the sum of $4,854.16 upon a stipulation and an order of the court.
The disclosure shows that at the time of such service Fine was a member of a firm known as Fine Rutzick which had purchased from the executors material to the amount of $1,859.91, and that on August 24, 1926, three days before the service of the garnishee summons upon him, Fine drew his firm's check for that amount, payable to the order of the Smith Sash Door Company, and delivered the same to Smith, one of the executors, in whose possession it was at the time of the service of such garnishee summons. At the time the check was drawn there were not sufficient funds in the bank to the credit of the garnishee to meet the check, nor was it presented for payment until August 28 when it was paid to Smith, [there having been sufficient funds deposited for that purpose.]2
Subsequent to the time of the service of the garnishee summons, Smith paid to plaintiff $1,023.13 on its account. Thereupon the court ordered judgment against the garnishee in the sum of $836.78, being the difference between the amount of the check and the account. From a judgment entered upon such order, the garnishee appealed.
1. In determining the liability of the garnishee, only the relationship existing between the garnishee and the defendant at the time of the service of the garnishee summons is important, and no party shall be adjudged a garnishee by reason of any liability incurred as maker or otherwise upon any draft, bill of exchange or promissory note. G.S. 1923, § 9361(3); 1, 3 Dunnell, Minn. Dig. (2 ed.) §§ 981, 3967. The check under consideration was executed three days prior to the service of the garnishee summons, and at the time of such service the payee named in the check had not presented the same to the bank upon which it was drawn for payment but did *Page 507 present it on August 28 when it was paid in full. G.S. 1923, § 7228, defines a check as a bill of exchange.
The provisions of the statute applicable to bills of exchange payable on demand apply to checks. I Dunnell, Minn. Dig. (2 ed.) § 981, It follows that a person is not chargeable as garnishee for an indebtedness evidenced by a negotiable instrument. It requires no argument to demonstrate that the payee named in the check in question might have maintained an action thereon against the maker.
Judgment reversed.
2 See correction infra, p. 507. [Reporter]