On Motion for Rehearing.
[8] We differ fundamentally with the defendant in error, Nunn Electric Company, as to the meaning of the special guaranty, quoted in the original opinion, bearing upon the obligation of Whyman Bros, and their successor, the engineering corporation, and the rights of Wayland, arising upon the well contract. The contention is made that the guaranty is relevant only to the ability and capacity of the equipment over the well as to the delivery of “1,100 gallons of water per minute, measured over a weir into a ditch,” and that said contract is devoid of any obligation that the well of itself shall have such capacity. The' contract on its face rath'er interprets itself; as to the guaranty of the equipment it further says that it “means that notes are not to be delivered to the parties of the first part unless * * * they turn the well and machinery over to the party of the second part, pumping 1,100 gallons of water regularly every minute.”
As a practical consideration, unless the well was developed to the capacity mentioned, the test could never be made that the pump and equipment could deliver 1,100 gallons of water per minute “measured over a weir into a ditch”; and it would mean, construed in its entirety, as it reads, that the well, as to its capacity, was to be turned over affording the water stated.
But, yielding the point, and assuming that at the time the writ of garnishment was issued, that Wayland owed something, by virtue of the contract, he, of course, did not owe the notes in the hands of the escrow. A 450 or 500 gallon well is not a 1,100 gallon well. Appellee would apply the rule of the measure *18oí damages, as applied to ,a building contract when abandoned, or violated by a building contractor, before the completion of the building. The record in this case excludes the idea that a 1,100 gallon well per minute could be developed by Wayland, the owner of the land when left in the inadequate condition stated — an 850 gallon well, after Wayland settled with Hall, is the testimony as to the limit of its development. Appellee was upon notice by the intervention of Hall, setting forth portions of the answer of the garnishee as to the noncompliance of the contract by the engineering corporation, months before the trial of this case; but no effort whatever was made to produce testimony in contradiction.
It must be borne in mind that the garnishee is required to “answer upon oath' what, if anything, he is indebted to the defendant.” Article 274, R. O. S.
The contract in this case contemplated a completed job with a depth of the well of 120 feet for $3,400, providing for a rebate of $3 per foot, if the lower stratum of water is struck at a less depth and an additional amount at the same rate if deeper. However, if this well could not be developed to a 1,100 gallon well, according to contract, could you apply the rule of what it would cost to finish it? This record excludes, rather than it suggests, that Wayland could ever get what he contracted for; hence, could you say that $3,400 entered into his obligation as an element of recovery against him, or $3 per foot as applied to the character of improvements? Would the contract as to the amount of recovery or demand furnish any data upon which the same could be calculated?
The cases of Capes v. Burgess et al., 135 Ill. 61, 25 N. E. 1000, and Hugg v. Booth, 24 N. C. 282, quoted from, by Chief Justice Gaines, in the case of Grocer Co. v. Railway Co., 95 Tex. 487, 68 S. W. 265, 59 L. R. A. 353, and relied upon as authority by him, in support of the doctrine announced in the Texas case, upon analysis of the contracts and the essential facts embodied in those cases, and the real holding of those courts, bearing a strong analogy to the contract and the question involved in this record. The North Carolina case is peculiarly applicable because the statute is the same; the construction of the Illinois Supreme Court makes their statute in effect the same.
We are following what we conceive to be the trend of the logic deducible from the Supreme Court case, supra, in holding that the character of damages, if any recoverable, is of such an unliquidated nature as not to be subject to garnishment.
The contention is further made, as upon the original hearing, that the unliquidated damages were liquidated' previous to trial, by the agreement between Hall and Wayland.
“It was said, however, that the attachment bound after the damages had been liquidated by the award of the jury. The obvious answer to this proposition is that Saylor assigned his claim to Selheimer before the award.” Selheimer v. Elder, 98 Pa. 158, 159.
The motion for rehearing is overruled.