(dissenting). In 1890 the defendant was the proprietor of the Cosmopolitan Magazine, which wrns published monthly; and on the 11th day of February, in that year, it entered into a contract with J. Wilson Brown, by which it sold to him type, for which he agreed to pay $808.43 on the 11th of August, 1890, and by which he also agreed to print and bind several successive monthly issues of said magazine for a price agreed on, the defendant agreeing to pay the amount due for each issue 30 days after it should be delivered by Brown to defendant. The plaintiff leased to Brown rooms in which he printed the magazine, and power with which to operate the presses. The G-ardnier Binding & Mailing Company bound the magazine for Brown; and in June, 1890, he was indebted to that corporation in the sum of $1,916.86. In June, Brown absconded, and July 3, 1890, the Gardnier Binding & Mailing Company brought an action in the superior court against him to recover $1,916.86, and on the same day attached a debt due from the defendant .to Brown. At this date the defendant was indebted to Brown in a considerable sum over all counterclaims for work previously performed. On the 12th of July, Browm was indebted to plaintiff for rent of rooms and power. On this date the August number of the magazine was on Brown’s presses. The plaintiff secured from Brown’s books a statement of the accounts between Brown and defendant, which showed that defendant was indebted to Brown in the sum of $2,459.90, and presented the statement to defendant. At this time the defendant had the right to eject Brown from the printing office, and to refuse .to furnish him with power. When the statement was presented to defendant, it asserted that it had offsets against the claim of $2,459.90, but agreed that if plaintiff would not dispossess Brown, and would furnish power to print the August number of the magazine (then on Brown’s presses), it would not set up any counterclaim against the demand of Brown against it, as shown by the statement, and amounting to $2,459.90.
The following are two of the findings in respect to the agreement between the litigants, and they are conclusive on the facts, as the record contains none of the evidence:
"(15) That on the 12th day of July, 1891, the defendant promised and agreed with the plaintiff the Excelsior Steam Power Company that the defendant would pay the account as presented by Mr. Swain, if said plaintiff would furnish the power and premises, so that defendant could get their magazine, 'which was then on Brown’s presses; that the said plaintiff furnished such power, and the defendant got their magazine. (16) That on the 12th day of July, 1891, the defendant, with full knowledge of all the facts and circumstances connected therewith, for a valuable consideration, agreed to waive, and did waive, all counterclaims and set-offs against said Brown which did then exist or which might thereafter exist in its favor by reason of the business dealings and relations theretofore had? between the defendant and said J. Wilson Brown.”
July 14,1890, the plaintiff brought an action in the supreme court against Brown to recover its debt, and on that day attached the debt owing by the defendant to Brown, and furnished rooms and power *562for the presses; and the August number of defendant’s magazine was printed, and delivered July 29, 1890, for which the defendant became indebted to Brown in the further sum of $1,415.96, which became due August 28,1890. February 18,1891, the defendant paid to the sheriff $1,651.47, which was $808.43 less than $2,459.90. The $1,651.47 was applied on the prior attachment of the Gardnier Binding & Mailing Company, and the defendant refused to pay the $808.43, but asserted its counterclaim for that amount due for type. ' This action was brought to recover the $808.43 and arrearages of interest.
The proposition that an attachment becomes a lien only on property or choses in action in existence when the writ is levied does not need the support of authority or of argument. A lien by legal process cannot be acquired on nothing. But this proposition does not seem to me to dispose of this case. On July 12, 1890, when the agreement between the litigants was entered into, and on the 14th of the same month, when the plaintiff levied its attachment, the defendant was actually indebted to Brown in a considerable sum over and above all counterclaims. This fact is conceded, and is established by the findings. An attachable subject existed on which the plaintiff by its warrant acquired a legal lien, subject, of course, to the lien acquired by the prior attachment of the Gardnier Binding & Mailing Company. Had the defendant remained silent, it would have had the right to have asserted whatever counterclaims it had as against the attaching creditors. But it did not remain silent. On the contrary, in the language of the finding, it agreed that it would pay the account as presented ($2,459.90) if the plaintiff would furnish the power and premises, so that defendant could get its magazine then on Brown’s presses. Pursuant to defendant’s promise, the plaintiff furnished the premises and the power, and the defendant received its August magazine in time to be issued. By this contract and the plaintiff’s performance of it, the defendant is bound, and is estopped from asserting, as against the plaintiff, a, counterclaim against the indebtedness as admitted on the 12th of July. Suppose the plaintiff had found chattels sufficient to pay its claim in defendant’s possession, which defendant admitted to be Brown’s property, and the plaintiff had attached them, and, it may be, omitted to take other attachable property. Indeed, the sheriff would have had no right to take more property than was sufficient to satisfy the plaintiff’s claim and costs, while in fact the defendant was the owner of part of the chattels seized.' In such a case the defendant would be estopped from proving the truth, that he owned part of the goods. Again, suppose that A. has a claim for $1,000 against B., an absconding debtor, and C. tells A. that he owes B. $1,200, which A. attaches, and omits, as he must, to attach other property. O. would be estopped from proving as against A. that, at the time he made the admission, he in fact owed B. only $500, or nothing. The supposed cases are not different in principle from the one at bar. In consideration of the plaintiff’s promise to permit the building to be occupied and its power to be *563used for defendant’s benefit, the latter promised not to set up against Brown’s claim any counterclaim; and the plaintiff having performed, and the defendant having reaped the benefit of performance, it cannot now escape the liability which it assumed. The plaintiff was under no obligation to furnish power and space, so that defendant’s August magazine could be printed in time for delivery; and the contract entered into July 12th, between the litigants, was a new and an original undertaking on the part of both, and founded on a valuable consideration. The judgment should be affirmed, with costs,