Saltmarsh v. Rowe

• Decision Date: 31 March 1846
• Citation: 10 Mo. 38
• Court: Missouri Supreme Court
• Parties: SALTMARSH ET AL. v. ROWE & VANDEVENTER.

10 Mo. 38

SALTMARSH ET AL.

v.ROWE & VANDEVENTER.

Supreme Court of Missouri.

March Term, 1846.

APPEAL FROM THE ST. LOUIS COURT OF COMMON PLEAS.

TODD & BATES, for Appellants.

I. The court erred in refusing to give to the jury the following instructions asked for by defendants: 1. The instruction that “unless the jury find from the testimony that Benjamin T. Osborne was the agent of the other defendants named in the declaration (except the Hites), with authority from them to contract with the plaintiffs for the lumber, the value of which is now sued for, they will find for the defendants,” ought to have been given, because, unless their authorized agent therefor, his contracts could bind only himself. For their general relations with each other with regard to the boat were, at the most, those only of tenants in common, and one tenant in common cannot ex vi termini bind his co-tenants as to third persons by any contracts of his, touching the property held in common, nor to himself without their express prior assent, except perhaps in cases of necessity, and then only on express prior request and refusal, unless before made general agent therefor. 3 Kent's Com. 151 to 157. That they are tenants in common. 6 Cowen, 475. That the contracts of each don't bind the rest. 8 Mo. R. 358-360. Gow on Partn. 64-5.3 Kent's Com. 63. That partners after dissolution are tenants in common, and their acts and declarations cannot bind their co-tenants except in matters happening during their partnership. 3 Johns. R. 175; 8 Mo. R. 358. That tenants in common are unlike partners. Gow on Partn. 194 n. x; 20 Johns. R. 611. 2. The instruction that “unless the jury find from the testimony that Benjamin T. Osborne at the time of making the note, which is in evidence, was clerk of the steamboat Potosi, they ought not to find for the plaintiffs as to that note,” ought to have been given, because unless such clerk, it is the note of Osborne alone. Bank of Missouri v. Scott, 1 Mo. R. 744. The court also by letting in this note, and refusing said instruction, in effect told the jury that if they believed that Osborne was part owner, he could bind his co-owners by any kind of contract in behalf of the boat and by notes--that he was their agent because part owner. 3. The instruction “in this action the jury ought not to find against any one of the defendants unless they think such defendant was an owner of the steamboat Potosi, and authorized the purchase of the lumber,” ought to have been given, because if an owner, but not authorizing, his position and liabilities are those only of a tenant in common, and therefore not liable. 4. The instruction, “if the jury believe from the evidence, that a contract was made between Osborne and the others of the steamboat Tide, when she was broken up and the building of the Potosi begun, that Osborne was to build at his own expense the cabin, and that the expense thereof was to be allowed him toward his contributory share in the building of the Potosi, and that said Osborne did build the cabin in pursuance of such contract, and that the said plaintiffs dealt with Osborne only in selling the lumber, giving credit, demanding and receiving payment until the maturity and protest of the note given by Osborne, they will find for all the defendants except Osborne,” ought to have been given, because if Osborne bought this lumber for a purpose solely his, and the plaintiffs dealt with him alone, Osborne alone is liable for the lumber. 11 Mass. R. 35.

II. The court erred in giving the two following instructions, to wit: 1. “If the jury believe from the evidence, that one or more of the defendants were part owners of the steamboat Potosi, at the time plaintiff's account accrued, and that the lumber therein charged, was used in the building of the said steamboat, the said part owners are liable to the plaintiffs for the same,” because one tenant in common is not liable for the contracts of his co-tenant touching their common property by the law of their relation. 2. “The jury will state in their verdict for which of the defendants they find, and against whom, with the amount--also, any arrangements between the defendants as to what part of the boat any one should construct, does not affect the plaintiff's right to recover against all who are part owners, unless it be that the plaintiffs knew of these arrangements,” because under such an arrangement each one's work is exclusively his until until the completion of the boat, and then those holding it together, hold it as tenants in common.

III. The evidence shows that the plaintiff below gave the entire credit to Osborne, and looked to no further security except their lien upon the boat. 11 Mass. R. 34.

IV. The court erred in refusing to grant the motion for a new trial. Because the verdict is against evidence in this, that it does not prove a contract to which the appellants are parties at law--for the contract proved was between appellees and Osborne only; appellees sold to Osborne alone, and Osborne alone bought the lumber. The appellants are certainly not proved to be express parties to the purchase, neither can they be bound on an implied contract because the lumber was put in a boat which, when completed, was property in common between Osborne and them. Because till the lumber was put into the boat the appellants had no claim in the lumber, it was Osborne's, and he could do with it as he chose; but when put into the boat it lost its character as lumber, and became parcel of the boat, and also its individual character of the sole property of Osborne; and becoming merged in the boat, obtained the character of property in common between appellants and Osborne.

POLK, for Appellees. The counsel of the appellees maintains that the instructions given by the court, are the law of this case. To the second instruction given by the court, it is taken for granted that no objection can be reasonably raised. That the first instruction was properly given by the court, reference is made to the following authorities: Abbott on Shipping, 71-2; Westerdell v. Dale, 7 Term R. 306; Rich, Ex'r, v. Coe et al., Cowper, 636; 7 Johns. 311; 16 Johns. 89; 1 Dallas, 129. In this case the purchase was made by Osborne, who acted as clerk, and who was one of the owners, and the amount was charged against the boat and owners. It therefore fully meets the case given Johnson's Reports, and is much stronger than the case in Term Reports, where the owner, who was sued, not only did not authorize the purchase, but was not even charged with the goods. That the third instruction given by the court is correct, see Rich, Ex'r, v. Coe et al., Cowper, 636. The counsel of appellees also contends that the court below committed no error in refusing the four instructions prayed by appellant's counsel in the court below. 7 Mo. R. 416; 1 Mo. R. 505 and 97; 3 Mo. R. 411; 6 Mo. R. 6; 3 Mo. R. 382 and 359; 7 Mo. R. 128 and 430; 8 Mo. R. 339.

SCOTT, J.

This was an action of assumpsit, instituted by the appellees, Rowe & Vandeventer, against the appellants, Edward and Charles H. Saltmarsh, Benj. T. Osborne, Nicholas Wall, and George and Wm. Hite, alleged owners of the steamboat Potosi. The declaration contained a count on a promissory note, charged to have been executed by the defendants, per pro curationem, and also the common counts. The defendants below, prayed a bill of particulars of the plaintiffs' demand under the common counts, and the plaintiffs filed as such bill of particulars an account for lumber furnished, which was the consideration of the note sued on. On the plea of non-assumpsit the parties went to trial, and the issue was found for the plaintiffs, and their damages assessed to the amount of $366 02, which was the amount of the bill for the lumber furnished and interest. Before the trial the plaintiffs entered a nolle prosequi as to two of the defendants, George and William Hite, and judgment by default having been taken against Osborne, the issue was found against the other defendants, and damages assessed as aforesaid.

The following is the substance of the testimony in the cause:

Thomas H. Hatch being sworn, testified that he knew the plaintiffs and their co-partnership, which was formed in February, 1842, and they composed the firm of Rowe & Vandeventer; that he had been their clerk; that plaintiffs traded in lumber; that witness sold and delivered for them; that he knows the hand-writing of Benjamin T. Osborne; that the signature of said Osborne to the note shown to him at the close of the plaintiff's case, given in evidence, which was of the following tenor, to-wit: “Dolls 327 42-100. St. Louis, July 27, 1842. Ninety days after date, steamboat Potosi and owners promise to pay to the order of Rowe & Vandeventer, three hundred and twenty-seven 42-100 dollars for value received, negotiable and payable without defalcation or discount. B. T. OSBORNE, Clk”--[Protested for non-payment October 28th, 1842. ANDREW ELLIOTT, N. P.]--was the hand-writing of said Osborne; witness had seen said Osborne on board said boat as clerk; that he did not know that said Osborne was clerk of the steamboat Potosi only as he understood; he had seen him on said Potosi, but did not know of his acting as clerk except in buying the lumber sued for in this suit; that said note was given for the lumber as set forth in the bill of particulars filed in this case for the said Potosi; that the body of said note was written by said Rowe; the lumber was bought by said Osborne; witness sold and delivered it all excepting a few items, amounting to $893; this, said Rowe sold; the lumber was used in making the cabin of said Potosi, which was built at Captain Case's yard; that the signature of said Osborne to the affidavit to the bill of said lumber, first made out and shown to the witness, is Osborne's, which bill and affidavit were in the words and figures following, to-wit: (this bill contains the same items as that filed in the bill of...