Boylan v. Steamboat Victory

• Decision Date: 31 March 1867
• Citation: 40 Mo. 244
• Parties: THOMAS BOYLAN AND WILLIAM P. GETTYS, Respondents, v. THE STEAMBOAT VICTORY, Appellant.
• Court: Missouri Supreme Court

40 Mo. 244

THOMAS BOYLAN AND WILLIAM P. GETTYS, Respondents,

v.THE STEAMBOAT VICTORY, Appellant.

Supreme Court of Missouri.

March Term, 1867.

Appeal from St. Louis Circuit Court.

This is a suit brought for supplies furnished. The petition was filed on the 29th January, 1866. The date of the first item of the account was August 30, 1864--for cash advances to the owner for buying stores and supplies for the boat, $500. The account then ran through September, October, and up to November 24, 1864, including an item of the date of November 12, of $1,500, for cash advanced to the owner for the purpose of buying stores and supplies for the boat. The next item was of date May 8, 1865, with various items running through May, June, July, August, September, and October, 1865--the account closing October 17, 1865--the demand consisting entirely of charges on one side, with no credits from August, 1864, to August, 1865.

Joseph Gray, one of the owners of the boat, filed an answer to the petition, denying any lien on the boat for any portion of the account prior to May 8, 1865; and averring that a portion of the account after the 8th of May had been paid, leaving only about $400 or $500 of the account due; and that Gray, Springer & Dozier purchased the boat long after the dates of any of the items in the account, and that they were not the owners at the time any of the supplies were furnished.

Upon the trial, the court (sitting as a jury) found for the plaintiffs the sum of $4,414.49.

Capt. T. P. Perkins, who was half owner of the boat during the whole period covered by the account, and was managing owner and financial agent of the boat, gave his two due bills for the cash “advanced” to the boat, one for $500, the other for $1,500; and stated in his testimony that the money was borrowed to pay off the crew of the boat for wages already due, and to purchase supplies.

It appeared from the testimony that the boat left St. Louis in the fall of 1864, and was engaged in the southern trade until the spring of 1865, and did not visit the port of St. Louis during the interval, about five months. It further appeared that a separate account of the items furnished for each trip of the boat was made out and presented for payment at the end of each trip. The two due bills referred to were read in evidence as follows:

“$500. Due Boylan & Gettys five hundred dollars, cash borrowed for account steamer Victory. St. Louis, August 20, 1864.--T. P. Perkins, owner.”

“$1,500. Due Boylan & Gettys fifteen hundred dollars, cash borrowed on account steamer Victory. St. Louis, November 12, 1864.--T. P. Perkins, owner.”

Plaintiffs offered in evidence the following paper, to-wit:

“The money advanced by Boylan & Gettys on the 26th of August, 1864, five hundred dollars, and on the 12th of November, 1864, fifteen hundred dollars, to the steamboat Victory, at St. Louis, was advanced by them and received by the boat for the express purpose of purchasing stores and supplies, fuel, and paying the necessary accruing expenses of the immediate trips after said advancements and said moneys were so appropriated.--T. P. Perkins.”

It appeared from the testimony that it was executed after Perkins had sold the boat; he did not know the purport of the note when he signed it, but was told by one of the plaintiffs that it was [a] paper puttimg both due bills into one.

Defendant objected to the introduction of the paper as incompetent evidence to show any lien on the boat. The court overruled the objection and admitted the paper in evidence, to which defendant excepted.

Upon the trial, the defendant asked the court to give the following instructions, which were given:

1. If the money was loaned to T. P. Perkins, then it devolves on plaintiffs to prove to the satisfaction of the court that it was loaned for the purpose of purchasing or procuring supplies, or labor to be done or furnished for the boat.

2. If the money was loaned for the purpose of paying wages due to the crew of said boat, or any other debt or liability of said boat or its owners, then there is no lien on the boat therefor, and the onus is upon plaintiffs to prove to the satisfaction of the court the facts necessary to create a lien on the boat for said money.

Defendant also asked the following instructions, which were refused:

3. If the court finds from the evidence that the boat left St. Louis on or about the 24th day of November, 1864, and from that time until May, 1865, there was no purchases for said boat, and no dealings or transactions between plaintiffs and said boat, or any one on its behalf, then, unless there was a contract or understanding that there should be other dealings or transactions with plaintiffs for said boat, or the account was not kept open by request on its behalf, there is no lien for any of the items in the account of date of said 24th of November, 1864, or prior thereto.

4. The items in the plaintiffs' account which accrued on and before the 24th day of November, 1864, are no lien on the boat, unless at the time the items were furnished on said 24th of November, it was agreed or understood between the parties that the plaintiffs should subsequently furnish supplies to defendant, and that the account was agreed to be kept open for the purpose of adding such subsequent purchases to it.

The court then, of its own motion, gave the following instruction:

“If there were no dealings or transactions between plaintiffs and the boat, or any one on its behalf, from the 24th day of November, 1864, until in May, 1865, and there was no contract or understanding or expectation that there would be any other such dealings or transactions, then there is no lien on the boat for any of the items in the account of 24th of November, 1865, or prior thereto.”

The giving of which was excepted to by defendant.

Sharp & Broadhead, for appellant.

I. The true rule is held to be, that where there are mutual charges and transactions, reciprocal demands between the parties, so that it is uncertain on which side the balance will fall, as it is constantly fluctuating, then each item of the other party is an admission, an implied agreemen for the continuance of the account; it is this agreement implied which constitutes mutual accounts, in which the last item in the mutual current form draws with it the prior current items and prevents the statute running against them. If, however, the account is wholly on one side, charges of one only against the other, this doctrine does not and cannot apply, and only such bills can be enforced as are in point of time within the period limited.--Ang. on Lim. 130-5, 139. § 8; Kimball et als. v. Brown, 7 Wend. 322. and cases cited; 5 Johns. Ch. 524.

II. That the subject matter of this suit, the furnishing of supplies to a vessel, is a maritime contract, and a cause of general admiralty jurisdiction, there can be no question, and as such it is within the peculiar jurisdiction of an admiralty court; (“Gen. Smith,” 14 Wheat. 443; De Lovio v. Boit, 2 Gal. 398-406; 2 Pars. Mar. Law, 511;) and to enforce a right under such a contract the party could always proceed in an admiralty court either in rem or in personam--“Orleans,” 11 Pet. 184.

If the supplies were furnished at the home port, neither in England nor in this country (except in certain cases) could the proceeding be in rem, but in personam only; but the contract was nevertheless a maritime contract. But could the State courts here, or the courts of common law in England proceed in rem? The admiralty proceeding in rem is peculiar to admiralty courts.

The proceeding under the boat law is a proceeding in rem, in a case clearly of admiralty jurisdiction. “The proceedings in rem against the ship itself is the proper and peculiar province of the Court of Admiralty. The jurisdiction of the courts of common law is expressed by suits against the person”--Abb. Ship. 162-3; Ben. Ad. § 362. This proceeding in rem is a proceeding against the property, and everybody interested in the property may become a party to the proceeding-- Ib. § 364. No such proceeding is known at common law.

If the State courts can resort to an admiralty proceeding in a maritime case, then the State courts can oust the jurisdiction of the Federal courts in all cases of admiralty jurisdiction, which, by the Constitution and acts of Congress, are within the peculiar and exclusive jurisdiction of the Federal judiciary.

As to what is a common law remedy under the act of 1789, Judge Wells, in the case of Ashbrook et als. v. Golden Gate, says: “In my judgment, it can be only common law actions--actions of debt, assumpsit, case of trespass, trover, &c., as practiced at common law; such are the only common law remedies then, or indeed now known. A proceeding in rem is unknown as a common law remedy--Newb. Ad. 305.

Rankin & Hayden, for respondent.

In the present case, the admiralty had no jurisdiction. The boat was a home boat, and Perkins, the owner, as he himself testifies, had ample credit; he testifies particularly to his credit and ability to pay. Now, it has been settled by a long...