This case was tried before the court without a jury, and the court made findings of fact and law as follows:
‘'Fact.
“ 1. On March 21, 1892, the plaintiff recovered a judgment in said court against Wallace Dingman, the principal defendant, of $4,000 damages and costs.
“ 2. The writ of garnishment in this case was served upon the garnishee defendant on the 7th day of August, 1891.
“ 3. On the 16th day of August, 1890, a contract was made in writing between said Wallace Dingman and the garnishee defendant for the grading of a railroad. Said contract is a part of the record, and a copy is attached to this finding, and, though executed by said Dingman and one James M. Turner, it was the contract of the garnishee defendant, and was so understood and interpreted by the parties.
“4. Said contract provided for the payment by the garnishee defendant to said Wallace Dingman, ‘ his surviving partners,’ etc., certain prices therein set forth for the work, upon monthly estimates of the work done, 15 per cent, of such estimates to be reserved until the completion of the work. The contract provided that payments were to be made under such regulations as should be agreed upon, and at such place as the garnishee defendant should appoint.
“5. Some months before the writ in this case was issued, defendant Dingman notified the garnishee defendant that George L. Davis and he were partners in the work, and were to share in *35the proceeds. Both subsequently worked upon said job, and in at least one instance money was paid by the garnishee defendant to said Davis.
“ 6. Previous to the service of said writ, monthly estimates of the work done were made, all of which had been duly paid (less the 15 per cent.), except a portion of the July estimate, for work done in June. Of this the sum of $8,532.18 remained in the hands of the garnishee defendant at the time the writ was served. No estimate had at that time been received for the work done in July.
“ 7. On August 9, 1891, defendant Dingman stopped work for the reason that he had not means to carry it on,' most of his implements having been seized upon chattel mortgage.
“8. On August 10, 1891, $8,000 was sent north by the garnishee defendant to pay the wages of laborers upon said work. At the same time the sum of $16,467.82, applied against the estimate for work done in July, was sent. This money was paid upon the payrolls of June and July. Subsequently the balance of the pay-roll for work done in July (some $4,000), and $5,000 more, was paid by the garnishee defendant upon the labor claims, more than covering the reserve of 15 per cent, provided by said contract.
“ 9. The pay-rolls upon which funds were paid were furnished by Dingman, and such payment was in accordance with the usage of the parties during the progress of the work, and also the express consent of Dingman, as shown by his letter of July 28, 1891.
“ 10. On May 15, 1891, an order for $10,029.94, given by Ding-man to the Michigan Slate Company, was presented to the garnishee defendant by said Turner, with a request that the same be paid. This order was signed: ‘ Wallace Dingman, by order Geo. L. Davis;’ and‘Wallace Dingman, O. K. Payment was refused on the ground that nothing was due to ' the contractors. It was filed, with the promise that it should be protected, if it could be, by the garnishee defendant. It has not been paid.
“ Law.
“ 1. The garnishee defendant is a party to the contract, both by its terms and as shown by the interpretation of the parties.
“2. Under this contract the principal defendant and George L. Davis (after notice of their partnership), as partners, had. a right to payment of what might afterwards become due upon it.
“ 3. Such fund could not lawfully be subjected to garnishment for the debts of Dingman.
“4. Under the statute (How. Stat. § 3423) the garnishee defendant had a right to withhold from the principal defendant, for a reasonable time, a sum sufficient to pay outstanding labor and material claims, and until furnished by defendant Dingman and his partner with the pay-rolls in the usual course of business.
*36“ 5. This, being a right that might lawfully be asserted against the contractors, was equally valid against the plaintiff.
“6. It appearing that no amount in excess of such claims has at any time been owing to the principal defendant by the garnishee defendant, the fund in its possession at the time the writ was served was not subject to garnishment at the suit of the plaintiff. The defendant is entitled to judgment for costs.” I
The liability of the garnishee defendant is contested on four grounds, viz.:
1. A partnership existed between the principal defendant and George L. Davis.
2. The funds were lawfully withheld by virtue of the statute.
3. The funds were subject to the regulations adopted by the contracting parties, and were subsequently paid out by the garnishee defendant in accordance therewith.
4. The contractor was in default at the time of the service of the writ, and it was uncertain whether anything would become due.
The findings of fact by the court stand upon the same basis as the verdict of a jury, and, if there is any evidence to‘sustain the findings, this Court will not review it.
1. The contract, though made with Dingman alone, contemplated that a partnership might be formed, for it expressly provides for payments to him or “his surviving partners." All the evidence in the case was introduced by plaintiff, and, aside from the written evidence, was given by Mr. Pierce, the accountant for the garnishee defendant, and Mr. Dingman, the principal defendant. Dingman was in possession of all ^he facts, and yet was not asked about the partnership. It is apparent that he was hostile to the, garnishee. Plaintiff’s counsel, in the examination of his witnesses, avoided all reference to the partnership of which the garnishee, under oath, in its answer, alleged it had been served with notice. The burden of proof was upon the plaintiff to establish an indebtedness from it to Ding-man alone. If his evidence disclosed a state of facts .equally consistent with agency for Dingman and a partner*37ship with him, he must fail, for it was clearly his duty to show which it was, and he cannot east the burden upon the garnishee to show it. Now, the evidence clearly disclosed some relation between Dingman and Davis, which was either that of agency or interest as a partner. The evidence disclosed that Dingman and Davis asked defendant garnishee to send checks to those at work upon the job; that money was paid to Davis; that Davis signed time checks; that Dingman and Davis went to Detroit, the principal office of the company, and then and there, at the request of both, debts of the contractors were settled and paid. Davis’ presence on this occasion is hardly consistent with the theory that he was agent for Dingman. A principal does not usually require the presence of his agent when he is attending to the business himself. I therefore conclude that there was some evidence tending to show partnership, and that this Court should not disturb the finding.
2. I think the funds were properly withheld under the statute. The statute expressly authorizes railroad companies to withhold payment until the laborers and material-men are paid. The proviso is as follows:
“ Provided, further, that a bill of items of the material and labor furnished to said contractor or subcontractors shall be furnished to the company through their agent, or otherwise, together with the amount claimed, prior to the usual pay-day of said company when such claim shall be due, or^ in case the contractor or contractors are not then paid, then prior to the payment then due.’’ How. Stat. § 3423.
The plaintiff, by his garnishee proceedings, cannot be placed in other or different position than his debtor. He succeeded to the same rights that his debtor possessed. Therefore if, under the statute, the debtor could not enforce payment, neither could the plaintiff. Section 2 of the act provides that the laborers and material-men shall *38have the right to collect pay from the companies by action if the claims are undisputed. Section 3 provides that, if disputed, the companies shall withhold, payment until it has been adjudicated before some court of competent jurisdiction, and upon the rendition of judgment in favor of the claimant the company is required to pay it. Could Mr. Dingman, at the time of the service of the writ, have sued the companjr, and recovered judgment, without having paid the laborers? We think not; otherwise the statute would be meaningless and ineffective. Its object is to protect the laborers and material-men, and to secure to them the payment of their just claims, and to authorize the companies to withhold payment till that object is accomplished. If Dingman had brought suit, and afterwards, and before judgment, bills of items had been furnished by the laborers, we do not think he could recover for the amount of such claims without having provided for their payment. Such is the evident meaning of the statute, for it says that it shall be sufficient if such bills of items be furnished at any time before the money due the contractor is paid to him. In July the company had notice that the laborers on the June pay-roll had not all been paid, but, on the contrary, there was then due for labor more than the amount due Dingman or Dingman & Davis on the contract. This pay-roll was a sufficient bill of items under the statute.
This question was not involved in Dudley v. Railway Co., 65 Mich. 655, 659, nor the question of voluntary payment of such claims by the company. The following statement in that opinion must therefore be regarded as dictum, viz.:
“ No provision is made for voluntary payment by the company to the laborer or material-man, but they are permitted to collect pay for the claim by action against the railroad company.”
Nor need the question of payments without suit, under *39this statute, where the claims are undisputed, be here considered. It is only necessary to determine whether the company had the right, at the time of the servi'cé of the writ, to withhold these payments for the protection of the laborers. If it had this right, it cannot be defeated by showing that subsequently the company paid the claims. No doubt is raised as to the validity of the claims of the laborers, or as to the good faith of the company. We think the findings of the circuit judge in this regard are correct;
3. The contract provided that the amount of monthly estimates should be “paid under such regulations as may be agreed upon between the parties, and at such place as the party of the second part may appoint.” Under this provision the parties to the contract, during the several months of its execution, had established a method of payment, not by any written regulations, but by common consent and custom. By this method the company sent currency from Detroit to the place of construction, and the laborers were first paid under the direction of one of its officers. This method was pursued upon the June estimate, which showed to be due on the contract $84,543.04, of which sum $35,000 had been sent in currency. ' This proving insufficient, the officer of the company sent to make the payments drew his check for $10,000, which was' used for the like purpose, and paid in the same manner. As already shown, these were not sufficient to pay the labor claims, and before any other money was sent for that purpose the writ of garnishment was served. We think the method of payment so established was binding upon Dingman and the company. It is equally binding upon those who claim under him. If he could not repudiate it, neither can. plaintiff.
Judgment affirmed.
Long, J., concurred with Grant, J. Montgomery, J., concurred in the result.