Bougher v. Kimball

• Decision Date: 31 March 1860
• Citation: 30 Mo. 193
• Parties: BOUGHER, Respondent, v. KIMBALL et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 193

BOUGHER, Respondent,

v.KIMBALL et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. A. served as mate on board a steamboat from April, 1854, to August, 1854, when the boat was laid up. When the boat stopped running, a portion of A.'s wages was due him. The boat commenced running again in October, and continued until December, 1854, A. serving as mate. As late as December only a portion of the wages due for services rendered previous to August was paid. A. also served as mate on board said boat from March, 1855, to July, 1855. The receipts entered in the books of the boat during this last mentioned period showed that A. was paid in full for each trip of the boat. Held, that upon these facts there was no legal presumption of the payment of the sum due A. when the boat was laid up in August, 1854.

Appeal from St. Louis Law Commissioner's Court.

Krum & Harding, for appellants.

I. So far as the defendants Kimball and Ware were concerned plaintiff's receipts raise a presumption of payment of the wages due August 26, 1854; it was error to refuse defendants' first and second instructions. (1 Pick. 332; Coxe, 35.) Upon the evidence under the law as declared in defendant's third instruction, the defendants Kimball and Ware were entitled to judgment in their favor. The plaintiff, a river man, would hardly have run upon the same boat so long after August 26, 1854, without demanding his back wages; nor would he have delayed his suit against the owners until March, 1857, if he had not released the boat and her owners by some arrangement. The instruction given in behalf of plaintiff was manifestly erroneous.

Rankin and C. S. Hayden, for respondent.

1. The facts raise no legal presumption of payment. There was no receipt in full, no settlement made or adjustment of matters between the parties. (17 Mo. 40.) There were merely particular specified payments or receipts. It is for the jury to say, from all the evidence in the case, what the effect of such payments or receipts is. (Reed v. Phillips, 4 Scam. 39; 7 Halst. 104; 9 Mo. 63.) Besides, the evidence, which appellants allege raised the presumption of payment, was explained by other evidence.

EWING, Judge, delivered the opinion of the court.

This was an action against the defendants as owners of the steamboat Columbus to recover the balance of one hundred and fifty dollars for wages due the plaintiff as mate on said boat for the month of July and up to 26th of August, 1854, at the rate of one hundred and fifty dollars per month. The plaintiff proved his services and their value. It appeared from the testimony of Parker, clerk of the boat, that the plaintiff shipped on board as mate, in February, 1854, and remained until 26th of August, when the steamer was laid up; that she came out again in October, when he went out again as mate and was mate on her when witness left her in December, 1854; that on the 26th of August there was due the plaintiff for wages as mate, the sum of two hundred and ten dollars and forty cents, which was not paid or settled so late as the 6th of December, 1854--the time witness left--except thirty dollars paid between the two last mentioned dates. The plaintiff also gives credit for a like sum...