street with Ohio street, and if you find that there was a hole or holes in said Illinois street large enough for a wheel of said truck to have dropped into said hole or holes, said hole or holes being at or near the point of junction of the curved street car rail or track, at the point in question, all as alleged in the complaint, and if you find that said Cheek saw said hole or holes, or in the exercise of reasonable ordinary care could have seen the same, and if you find that said Cheek so negligently drove said truck as to cause the wheel of said truck to drop into one of said holes, and if you find that the dropping of said wheel in said hole caused said Cheek to negligently lose control of his machine, and caused the machine to veer and hit Charles H. Lee and cause his death, all as alleged in the complaint, then you should find for plaintiff, unless you find that said Charles H. Lee was guilty of contributory negligence. (6) If you find from a preponderance of the evidence in this action that the plaintiff should recover against the defendants, then it will be your duty to award plaintiff such damages as will compensate said testator's widow for the pecuniary loss sustained by her as a result of his death, and in fixing the amount it will be your duty to take into consideration said testator's age at the time of his death, his health and expectancy of life, and his earning capacity; your verdict, however, not to exceed $10,000." Appellants assert that instruction No. 1 is erroneous and harmful because there was no issue as to the decedent's right to cross the street, and the instruction was therefore confusing and misleading to the jury. [1] The complaint shows that the decedent was struck and injured while lawfully upon the street and exercising due care for his own safety. Considering the issues and the evidence, the instruction was neither erroneous nor misleading. If there was no controversy as to the decedent's right to cross the street, appellants could not have been harmed in any way by the giving of the instruction. Stringer v. Frost, 116 Ind. 477479, 19 N. E. 331, 2 L. R. A. 614, 9 Am. St. Rep. 875; Simons v. Gaynor, 89 Ind. 165, 166; Clear Creek, etc., Co. v. Dearmin, 160 Ind. 162-169, 66 N. E. 609; Apperson v. Lazro, 44 Ind. App. 186-191, 87 N. E. 97, 88 N. E. 99. considered and passed upon without reference to other instructions given to the jury. While mandatory in form, and failing to specifically set out each element essential to appellee's recovery, it contains the qualifying phrase, "all as alleged in the complaint." The complaint avers facts which constitute actionable negligence, and if proven entitle plaintiff to a recovery. The phrase as aforesaid directs attention to the charge made in the complaint and necessarily to the instructions which deal with the several elements essential to a recovery and with every phase of appellants' defense. In determining whether appellants were harmed by the giving of instruction No. 5, we may look to the other instructions, and consider all the instructions given to the jury which bear on the questions involved. Indianapolis & Cin. Trac. Co. v. Wiles, 174 Ind. 236, 242, 244, 91 N. E. 161, 729; Indiana Union Traction Co. v. Jacobs, 167 Ind. 8593, 78 N. E. 325; Burford v. Dautrich, 55 Ind. App. 384-388, 103 N. E. 953; Shields v. State, 149 Ind. 395-406, 49 N. E. 351; Harmon v. Foran, 48 Ind. App. 262-267, 94 N. E. 1050, 95 N. E. 597; Hutchins v. State, 151 Ind. 667-670, 52 N. E. 403; Atkinson v. Dailey, 107 Ind. 117, 118, 7 N. E. 902; Otter Creek Coal Co. v. Archer, 115 N. E. 952; Knapp v. State, 168 Ind. 153-159, 79 N. E 1076, 11 Ann. Cas. 604. The street car company tendered 12, and the other defendant 6, instructions, all of which were given by the court. By these instructions appellants had the benefit at the trial of every possible proposition which limited and defined appellee's right of recovery, and likewise of every proposition available as a defense. A reading of the instructions given shows clearly that the jury were fully instructed as to every element essential to a recovery and as to the burden that rested upon appellee to prove each and all of such elements. Considering this instruction in the light of the others given, we are clearly convinced Appellants say the court erred in giving in- that in any view that may be taken of it struction No. 5, supra, because it is manda- the jury was not misled or appellants harmtory and fails to "correctly state the law as ed by the giving of it. American Sheet & to every point essential to plaintiff's right to Tin Plate Co. v. Bucy, 43 Ind. App. 501-504, a judgment"; that it was harmful to the 87 N. E. 1051; P., C., C. & St. L. Ry. Co. v. traction company because it assumes that Collins, 168 Ind. 467-475, 80 N. E. 415; Inthere was a hole in the pavement "large dianapolis, etc., Co. v. Newby, 45 Ind. App. enough for a wheel of said truck to have 540-544, 90 N. E. 29, 91 N. E. 36; So. Ry. dropped into" the same, and that the pres- Co. v. Howerton, 182 Ind. 208, 223, 224, 105 ence of such hole constituted actionable neg-N. E. 1025, 106 N. E. 369; New Castle Bridge ligence on the part of the company; that the Co. v. Doty, 168 Ind. 259, 266, 267, 79 N. E. court invaded the province of the jury in determining that there was a defect in the street as would constitute negligence of the company; that under the law of the last clear chance the negligence of the driver was the sole proximate cause of the injury. [2] The instruction may be subject to some criticism, but it does not belong to that class of mandatory instructions which must be 485; Bowers v. Starbuck (Sup.) 116 N. E. 301; Chicago, etc., R. Co. v. Dinius, 180 Ind. 596-624, 103 N. E. 652; Home Telephone Co. v. Weir, 53 Ind. App. 466-469, 101 N. E. 1020, 1021; Shirley Hill Coal Co. v. Moore, 181 Ind. 513-517, 103 N. E. 802; Neely v. L. & S. Traction Co., 53 Ind. App. 659-667, 102 N. E. 455. [3] The suggestion which invokes the ap plication of the last clear chance doctrine to such holes were five or six inches deep, and show instruction 5 to be erroneous is not of sufficient size and length to allow the tenable. The case was not presented or tried wheels of an automobile or truck to drop to on such theory. There is neither averment the bottom of them; that the wheels of the nor evidence tending to show antecedent lack truck in question did drop therein, and that of due care on the part of the decedent and such fact in connection with the negligence a subsequent chance on the part of the driver of the driver combined to cause the truck to to avoid injuring him, notwithstanding such suddenly leave its course and strike and innegligence, which is the basis for the appli- jure the decedent substantially as alleged in cation of the aforesaid doctrine. Hartlage the complaint. There was no dispute about v. L. & N. Ry. Co., 180 Ind. 666, 668, 669, 103 the fact that ordinances were in force which N. E. 737, Ann. Cas. 1916B, 868; Indianap-required the street car company to keep in olis Traction & Terminal Co. v. Croly, 54 repair a portion of the street as alleged in Ind. App. 566, 578, 579, 96 N. E. 973, 98 N. the complaint. E. 1091. The evidence, though conflicting as to some of the facts in issue, sustains the verdict against each and all of appellants. City of Logansport v. Smith, 47 Ind. App. 64–73, 93 N. E. 883; Indianapolis Traction & Terminal Co. v. Springer, 47 Ind. App. 35-43, 93 N. E. 707; L., N. A., etc., Ry. Co. v. Lucas, 119 Ind. 583-591, 21 N. E. 968, 6 L. R. A. 193. The case seems to have been fairly tried on its merits. No intervening error harmful to appellants has been shown. Section 700, Burns' 1914; Kelso v. Cook, 184 Ind. 173203, 110 N. E. 987; Shedd-American Maize Products Co., 60 Ind. App. 146-162, 108 N. E. 610; Bruns v. Cope, 182 Ind. 289–296, 105 N. E. 471. Judgment affirmed. (No. 9514.). (68 Ind. App. 679) [4] While we do not base our opinion as to instruction 5 on the proposition, it is doubtful if appellant Indianapolis Traction & Terminal Company is in a position to take ad`vantage of the objection based on the general reference to the complaint, for in instruction 5 tendered by it, and given to the jury, it refers to the negligence of the defendants "as alleged in the complaint." By this instruction, similar in form to instruction 5 complained of, appellant in a measure at least invited the alleged error. Orient Ins. Co. v. Kaptur, 176 Ind. 308-312, 95 N. E. 230. [5] Appellants object to instruction 6 because "it would be understood by a man of average intelligence to mean to give the full earning capacity of the decedent for his term of expectancy." The instruction is a correct general statement of the rule for the measure of damages in cases like the one at bar. BECKMAN SUPPLY CO. v. NEWELL et al.* [6] If appellants desire a more detailed statement of the elements or limitations to be considered in awarding compensation, they should have tendered correct and appropriate instructions to that end, and, failing so to do, cannot be heard to complain of the instruction given. Indiana U. Trac. Co. v. Jacobs, 167 Ind. 85-94, 78 N. E. 325; P., C., C. & St. L. Ry. Co. v. Brown, 178 Ind. 11-26, 97 N. E. 145, 98 N. E. 625; Elliott v. Elliott, 61 Ind. App. 209-212, 111 N. E. 813; Chicago & Erie Ry. Co. v. Hamerick, 50 Ind. App. 425-448, 96 N. E. 649. The instructions given to the jury were fair to appellants and fully as favorable to them as the law warrants. Considered together, as they should be, there is no basis for contention that they were confusing or misleading to the preju-3. EXECUTION 398-SUPPLEMENTAL PROdice of appellants. While there is conflict in the evidence as to some of the issuable facts, there is evidence tending to prove every material proposition upon which the ver dict rests. [7] The evidence tends to prove the existence of several holes in the pavement at the crossing where the accident occurred, in that portion of the street which the ordinance required the traction company to keep in repair, and that they had so existed for more than three months prior to the accident. The evidence also tends to prove that (Appellate Court of Indiana, Division No. 1. March 12, 1918.) 1. EXECUTION 387 - SUPPLEMENTAL PRO CEEDINGS-FORMAL PLEADINGS. Under Burns' Ann. St. 1914, § 865, in proceedings supplemental to execution formal pleadings are unnecessary, other than the affidavit or verified complaint on which the order requiring the parties to appear and answer is issued, and the demurrer and motions authorized by the provisions of the statute to test the sufficiency of the order and of the affidavit. 2. EXECUTION 394 SUPPLEMENTAL PRO CEEDINGS-PROCEDURE. The rules of civil procedure apply in proceedings supplemental to execution where the statute has not expressly or by fair implication indicated the procedure contemplated. CEEDINGS-FINDING AND CONCLUSIONS. Neither party to proceedings supplemental to execution has the right to require the trial court to make a special finding of facts and state its conclusions of law thereon, under the provisions of our Civil Code. 4. EXECUTION 398 - SUPPLEMENTAL PROCEEDINGS-SPECIAL FINDING. Where a special finding of facts has been made in a proceeding supplemental to execution, it will be treated as a general finding only. 5. EXECUTION 387-SUPPLEMENTAL PRO CEEDINGS-UNAUTHORIZED PLEADINGS. In proceedings supplemental to execution, where pleadings other than those authorized by the statute are filed, they may be disregarded. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 8. ASSIGNMENTS 18-EXECUTORY CONTRACT | said judgment is unpaid, and the sheriff -PUBLIC WORK. Under Burns' Ann. St. 1914, § 9071, making all written promises negotiable by indorsement, a valid subsisting executory agreement in writing for the improvement of a sidewalk was assignable by the contractors for the work, though no payment was due them at the time of the assignment. 7. EXECUTION 111-LIEN-FUNDS TO BECOME DUE UNDER CONTRACT. Under Burns' Ann. St. 1914, § 728, giving a lien on the goods and chattels of an execution defendant within the officer's jurisdiction from the time of delivery of execution to him, a judgment creditor, by virtue of its execution in the hands of the sheriff prior to the assignment by the judgment debtor of an executory contract under which no payment was due, did not acquire a valid and enforceable lien against the funds to become due for work to be performed and material to be furnished thereafter by the judgment debtor under such contract, since there was no existing debt under the contract, which might never be performed so as to make effectual the obligation to pay thereunder. 8. EXECUTION 48-LEVY-CHOSES IN AC TION. still holds said alias execution, and the same is unsatisfied; that Downey and Portz are residents of Lake county, Ind., and are indebted to Newell Bros. in the sum of $500; that the Grasselli Chemical Company is a resident of Lake county, Ind., and is indebted to said Newell Bros. in the sum of $1,500; that said Newell Bros., as partners, are not entitled to claim any property as exempt from execution; that the defendants Henry P. Downey and A. Portz, partners, James Cunningham, Arthur Hatfield, Frank Hatfield, William Buehring, Joe Minch, Harry Blodgett, Jacob Wiker, Anderson, Kussman Krevice, Lawrence Stoeker, and George Manke, each claim some interest in and to the said sum of money due from the defendant Grasselli Chemical Company to said Newell Bros., the exact nature of which claims are unfounded, and are junior to the claims is unknown to plaintiff; that said rights of plaintiff; that said parties are made defendants hereto to answer their rights, if any, in the premises. Down Axel as to A debt evidenced by an executory contract for the improvement of a sidewalk could be reached by the contractors' judgment creditor, the contractors having assigned, only by means of the provisions of Burns' Ann. St. 1914, 8ey and Portz filed a cross-complaint which 766, providing that any debt or thing in action legally or equitably assignable may be levied upon, when given up by the defendant, and sold on execution in the same manner as other personal property. Appeal from Superior Court, Lake County; Virgil S. Reiter, Judge. Proceeding supplemental to execution by the Beckman Supply Company against James and John Newell, partners doing business under the name and style of Newell Bros., and others. From the judgment, plaintiff appeals. Affirmed. Wm. J. Whinery, of Hammond, for appellant. Frank B. Pattee, of Crown Point, for appellees. FELT, J. This is a proceeding supplemental to execution brought by appellant against James and John Newell, partners doing business under the name and style of Newell Bros., Henry P. Downey and A. Portz, partners doing business under the name of Downey & Portz Company, the Grasselli Chemical Company, a corporation, and a number of other defendants. The verified amended complaint alleges, in substance, that on October 19, 1914, appellant recovered a judgment in the Lake superior court against Newell Bros. aforesaid for $654.59; that on February 20, 1915, it caused an execution to be issued thereon, and the same was delivered to the sheriff of Lake county, Ind., in which county said Newell and Newell resided; that the same was wholly unsatisfied when the complaint was filed; that on July 22, 1915, appellant caused an alias execution to be issued on said judgment, and thereupon said first execution was duly returned unsatisfied; that they dismissed before the court announced its finding. The Grasselli Chemical Company filed an interpleader asking to be permitted to pay the sum due from it into court thereafter filed an answer of general denial and be discharged from further liability. It to the amended complaint. Portz also filed a special answer in which Downey and Bros. were financially embarrassed and had they alleged, in substance, that Newell assigned to them the sum of money due from Grasselli Chemical Company; that they were the owners thereof and entitled to payment of the same. To this answer appellant filed a reply in two paragraphs, the first of which was a general denial. The second paragraph alleges in substance: That in June, 1915, Newell Bros. entered into a written contract with the Grasselli Chemical Company to construct a sidewalk along and upon its real estate for the sum of $1,018.70, and entered upon the work; "that on the 17th day of July, 1915, with the intent to cheat, hinder, delay, and defraud their creditors, including this plaintiff, the said defendants Newell and Newell purported to assign the proceeds of said contract to defendants Downey and Portz; that said Downey and Portz received and accepted said assignment with full knowledge and notice that said purported assignment was so made with intention to hinder, delay, and defraud the creditors of said defendants Newell and Newell, including the plaintiff; that at the time of making said purported assignment said Newell and Newell were insolvent and were without sufficient other property, goods, and chattels to pay their then existing debts, including the claim of and Portz well knew; that by said assignment plaintiff, all of which said defendants Downey of the proceeds of said contract said Newell and Newell divested themselves of all power and property with which plaintiff's claim herein might be paid; that at the time of said purported assignment said defendants Newell and Newell did not then have, nor have they since had, nor have they now sufficient other property, subject to execution, with and out of which to pay their then present and existing debts, including the claim of plaintiff herein; that at the time of making said purported assignment said defendants Newell and Newell, copartners, had no other property whatsoever subject to execution, all of which was well known to said Downey and Portz and to said Newell and Newell." Newell and Newell also filed a special answer in which they alleged, in substance, that the property belonging to them as partners is covered by chattel mortgage in the sum of $3,800; that they are indebted to Downey and Portz in the sum of $5,000; that they claim no right to the money held by.Grasselli Chemical Company, and prior to the commencement of this proceeding they assigned said sum for a valuable consideration to said Downey and Portz. Appellant replied to such answer by general denial. The other defendants filed a general denial to the complaint. The other defendants to the amended complaint also filed cross-complaints, which were dismissed before the trial of the case. The plaintiff also dismissed its complaint as to Lake County Savings & Trust Company. The plaintiff requested the court to find the facts specially, and state its conclusions of law thereon, which request was granted. "Costs shall be awarded and taxed in this proceeding as in other cases; and all proceedings under this act, after the order has been made requiring parties to appear and answer, shall be summary, without further pleadings, upon the oral examination and testimony of parties and witnesses. But the sufficiency of the order and of the affidavit first filed by the plaintiff may be tested by demurrer or motion to dismiss or strike out the same." This section expressly dispenses with formal pleadings other than the affidavit or verified complaint on which the order was issued, and the demurrer and motions authorized by its provisions for the purposes therein stated. Wallace v. Lawyer, 91 Ind. 128-130; Burkett v. Holman, 104 Ind. 6-11, 3 N. E. 406; Pouder v. Tate, 111 Ind. 148-150, 12 N. E. 291; Burkett v. Bowen, 118 Ind. 379-381, 21 N. E. 38. In Burkett v. Holman, supra, our Supreme Court said: "All of this section 822, except so much thereof as relates to the award and taxation of costs, in the old Code of 1852, but appears for the is new legislation, that is, it is not to be found first time in the Civil Code of 1881. So much of the section as relates to costs is a literal reenactment of section 525 in the Civil Code of 1852. 2 R. S. 1876, p. 232. The new legislation in such section is what may be called a legislative overruling, by implication, of the decisions of this court, in Toledo, etc., R. W. Co. v. Howes, 68 Ind. 458, supra, and the cases which follow it. That is, contrary to the decisions of this court in the cases cited, that plead The cause was tried on October 27, 1915, on the issues formed on the amended com-ings might be filed and issues of law or fact plaint and the cross-complaint of Downey and Portz. The case was taken under advisement by the court. On November 1, 1915, Downey and Portz dismissed their cross-complaint, and moved the court to strike out plaintiff's request for a special finding of facts. The court thereafter sustained said motion, to which ruling appellant excepted. formed, in such suits as the one at bar, section 822 provides, in effect, that there shall be no pleadings filed in such cases, except that the sufficiency of the plaintiff's affidavit or verified complaint 'may be tested by demurrer, or motion to dismiss or strike out the same."" [2] The rules of civil procedure apply in proceedings supplemental to execution, where the statute has not expressly or by fair implication indicated the procedure contemplated. [3] Based on the summary character of the proceeding authorized by the statute supra, it has been held that neither party to such proceedings has the right to require the trial court to make a special finding of facts and state its conclusions of law thereon, under the provisions of our Civil Code. Hutchinson v. Trauerman, 112 Ind. 21-25, 13 N. E. 412; Chicago & Alton Ry. Co. v. Summers, 113 Ind. 10-15, 14 N. E. 733, 3 Am. St. Rep. 616; Balz v. Benninghof, 5 Ind. App. 522-524, 32 N. E. 595; Harper v. Behagg, 14 Ind. App. 427-429, 430, 42 N. E. 1115; Berry v. Berry, 147 Ind. 176-178, 46 N. E. 470. The court made a general finding that plaintiff take nothing by its complaint, and that the funds in the hands of Grasselli Chemical Company be paid to Downey and Portz. Appellant's motion for a new trial was overruled, and judgment rendered in accordance with the aforesaid finding. Ap pellant has assigned as error: (1) The overruling of its motion to require Downey and Portz to make their special answer more specific; (2) overruling appellant's demurrer to the special answer of Downey and Portz; (3) sustaining the motion to strike out its request for a special finding of facts and conclusions of law, and in refusing to make a special finding of facts and state conclusions of law thereon; (4) overruling appellant's motion for a new trial; (5) sustaining the motion of Downey and Portz to mod- [5] Where pleadings other than those auify the final judgment rendered on Novem-thorized by the statute are filed they may be ber 26, 1915, and in modifying said judgment. disregarded. Wallace v. Lawyer, supra; This suit was brought in pursuance of the Balz v. Benninghof, supra. provisions of section 859 et seq. of Burns' Statutes 1914. [4] Where a special finding of facts has been made in such a proceeding, it will be treated as a general finding only. Balz v. Benninghof, supra. From the foregoing propositions it follows that the court did not err as alleged in ap[1] Section 822, R. S. 1881, being section pellant's first, second, and third assignments. 863, Burns 1914, is as follows: The propositions above announced neces sarily dispose of all the grounds of appel- in the hands of the sheriff of the county, it lant's motion for a new trial adversely to its acquired a lien on the funds in the hands of contention, unless it be the fifth and sixth, the Grasselli Chemical Company prior to the viz. that the decision of court is not sustain- date of the assignment to Downey and Portz, ed by sufficient evidence; that it is contrary | by virtue of section 728, Burns 1914. This to law. section gives a lien on the "goods and chatAppellant contends that the undisputed ev- tels" of an execution defendant within the idence shows that by virtue of the execution | jurisdiction of the officer from the time of on its judgment in the hands of the sheriff the delivery of the execution to such officer. it acquired and held a valid lien on the pro- Section 766, Burns 1914, provides that: ceeds of the contract between Newell Bros. "Any debt or thing in action, legally or equiand Grasselli Chemical Company, which was tably assignable, may be levied upon, when givsuperior to the right of Downey and Portz in the same manner as other personal property." en up by the defendant, and sold on execution, acquired by the assignment to them of the improvement contract; that such assignment ture of the instrument or contract in quesIn any view that may be taken of the nawas void because it was only an agreement tion, appellant, by virtue of its execution in to assign a mere possibility, which did not the hands of the sheriff, prior to the ashave even a potential existence; that the as-signment to Downey and Portz, did not acsignment by Newell Bros. to Downey and quire a valid and enforceable lien against Portz was fraudulent as against appellant. the funds to come due from Grasselli ChemiThe evidence shows without controversy cal Company for work to be performed and that the first execution issued on appellant's material to be furnished thereafter under judgment was returned unsatisfied on July 22, 1915, and that an alias execution was is- such contract. Nothing was due at the time the assignment was made, and therefore sued thereon on the same day and placed in the hands of the sheriff; also that this suit execution could attach, even if it should be there was nothing to which the lien of the was filed and process issued thereon and conceded (which is not the case) that the served on the same day. lien of the execution would attach to funds The evidence also shows that the Grasselli Chemical Company let to Newell Bros. a contract for constructing a sidewalk on June 28, 1915, for the sum of $1,018.70; that the amount to be paid Newell Bros. under said contract was by them duly assigned to Downey and Portz for value received on July 17, 1915; that no material had been used on said improvement at the time of such assignment, but the work of grading had been commenced prior thereto; that thereafter Newell Bros. completed said work according to contract and the material therefor and the money for payment of labor was furnished by Downey and Portz. The Grasselli Chemical Company admitted it owed the full amount of the contract and was ready and willing to pay the same in accordance with the order of the court. The insolvency of Newell Bros. was proven and uncontroverted. [6] The contract for the improvement of the sidewalk was more than a mere possibility of something to be secured in the future. It was a valid, subsisting, executory agreement between the parties. True, no payment was due under it at the time of the assignment, but that in no way affected the validity of the assignment. Section 9071, Burns 1914; Magic Packing Co. v. Stone, etc., Co., 158 Ind. 538-540, 64 N. E. 11; Krieg v. Palmer Nat. Bank, 51 Ind. App. 34-40, 95 N. E. 613. [7] But appellant further contends that, if the assignment was valid, Downey and Portz took it subject to the lien of the execution Issued upon its judgment against Newell Bros. Appellant does not claim that any payment was due under the contract at the time the assignment was made, but asserts in the hands of Grasselli Chemical Com pany due under the construction.contract by virtue of section 728, supra. The contract was executory, and the amount to become due thereunder was potential rather than actual. There was no existing debt against the Grasselli Chemical Company at that time, for its obligation to pay depended upon the performance of the conditions of the contract, which had not then been executed, and which might never be performed so as to make effectual the obligation of the Chemical Company to pay. 17 Cyc. pp. 940, 968, 971; Paine v. Gunniss, 60 Minn. 257, 62 N. W. 280; Hasbrouck v. Bouton, 60 Barb. (N. Y.) 413; Keck v. State ex rel., etc., 12 Ind. App. 119-125, 39 N. E. 899; Bay v. Saulspaugh, 74 Ind. 397-399; Marion Tp. Union Draining Co. v. Norris, 37 Steele v. McCarty, 130 Ind. 424, 431, 432: Ind. 547-548, 30 N. E. 516. In Re Paine et al. v. Gunniss, supra, the essential facts were similar to those of the case at bar, and the Supreme Court of Minnesota said: "Was this attempted levy, made by the sheriff, a valid and effectual one? We are of the opinion that it was not. At the time when this attempted levy was made there was nothing due or payable to the contractors or the receiver upon the contract, and whether there ever would be was contingent upon its further performance. * * Neither the inchoate contingent claim on the contract nor the claim for unliquidated damages was subject to levy. * on the contract would depend upon their power Whether they would earn any more money upand ability to do so. It was therefore a contingency depending upon the will and ability of the contractor to go on with the work." * [8] By virtue of the execution in the |