(dissenting) — I agree with the majority opinion that the garnishment proceedings availed Tilley nothing. The same is true of his judgment against Sundberg for rental and repair of the vacuum cleaner equipment used in the painting job for Boeing, since Sundberg cannot pay it. These futile proceedings do not alter the fact that Sund-berg’s debt to Tilley arose out of the execution of the Sund-berg-Boeing painting contract.
When Boeing deposited the funds here in question in court at the commencement of its interpleader action, it was *740for the purpose of having them distributed to persons privy to the painting contract, who could show they are entitled to participate therein by reason of having contributed to the performance of the job.
The surety was obligated to complete the painting contract, that is, to pay the cost of procuring its completion. Had Tilley supplied the equipment after'the surety had undertaken the completion of the contract, there would have been a direct obligation on the part of the surety running to Tilley, but since the obligation to Tilley antedated the assumption of the contract, its owes the amount to Tilley only as a surety, not as a principal.
.It is said that the surety is subrogated to the rights of Boeing. The nature of this right with regard to the funds deposited into court by Boeing is simply that the surety can insist that it be distributed to persons whose claims, in connection with the painting job, would be good against the surety to the extent that they were not satisfied out of the funds so deposited. Tilley is a creditor of this class, and it is immaterial that the obligation to him was incurred prior to the surety’s assumption of the painting contract. No part of Tilley’s rights to participate in the funds deposited in court need be predicated upon his judgment against Sund-berg or the garnishment proceeding. In short, the money was deposited in court for the benefit of the creditors who performed the job. He is one of them. No reason has been given why he should not be paid out of the fund in court and/or by the surety direct.
I dissent.