Callaway Mining & Mfg. Co. v. Clark

• Decision Date: 31 March 1862
• Citation: 32 Mo. 305
• Parties: CALLAWAY MINING AND MANUFACTURING COMPANY, Respondent, v. GEORGE W. CLARK et al., Appellants.
• Court: Missouri Supreme Court

32 Mo. 305

CALLAWAY MINING AND MANUFACTURING COMPANY, Respondent,

v.GEORGE W. CLARK et al., Appellants.

Supreme Court of Missouri.

March Term, 1862.

Appeal from St. Louis Circuit Court.

The defendants, by virtue of an attachment in their favor against one Roberts, had seized a steamboat belonging to the plaintiff, used in transporting coal from the plaintiff's railway and mines to Jefferson city. Roberts pleaded in abatement of the attachment, and the suit was dismissed. The plaintiff sued to recover damages for the seizure and detention of the boat. At the trial evidence was offered tending to show that the plaintiff had laid up their boat, and that it would not have been used during the period of detention.

The answer denied the corporate existence of plaintiff, the ownership of the boat, its wrongful seizure and detention, and alleged that it was not enrolled or licensed to run as a steamboat, and pleaded a counter-claim.

The ownership of the boat was proved by parol testimony.

The court gave the following instruction for the plaintiff:

“If the jury believe that the defendants sued one A. S. Roberts, Jr., in this court, by attachment, in October, 1857, and caused a writ of attachment to be issued to the sheriff of Callaway county, and said writ was placed in said sheriff's hands to be executed; and that in December, 1857, the steamboat Dubuque was, at the instance of said defendants, seized under said writ by the sheriff of Callaway county, and taken and detained out of plaintiff's possession; and that said boat, at the time of said seizure, was the property of the plaintiff, and was in its employ when seized,-- then the jury will find for plaintiff such damages as from the evidence they may believe it has sustained by the seizure of said boat.”

The fifth and sixth instructions asked by defendants and refused, were as follows:

5. There is no evidence in this case that the plaintiff was the owner of the steamboat Dubuque on the fourth day of November, 1857, when the boat was attached at the suit of the defendants.

6. The Callaway Mining Company could not own a steamboat at any time during the month of November, 1857.

The other instructions are referred to in the opinion.

A. M. & S. H. Gardner, with S. Knox, for appellants.

I. The plaintiff was a corporation possessing no powers except such as were granted by the act of incorporation. (Beatty v. Lessee of Knowles, 4 Pet. 152; 18 Ohio, 151; 16 Ohio, 97; Ang. & Ames on Corp's, § 160, 256, 111.)

The act of incorporation gives no authority to plaintiff to own steamboats. (Acts 1847, p. 151.)

II. The first instruction asked by defendants and refused should have been given. The plaintiff sued for damages for being kept out of the use of the boat for thirty-three days, and for wages of hands during that time. If the boat could not have earned anything during that time, the damage sustained must have been nominal.

III. The second instruction of defendants, refused, should have been given. If the plaintiff did not intend to use the boat during the time it was detained, what damage could be sustained by being deprived of it.

Sharp, for respondent.

I. The plaintiff had the right to own and use the boat, by its charter and the general statute and law. (Acts 1847, p. 151; Acts 1857, p. 352; Acts 1855, p. 266; R. C. 1855, p. 369; 2 Kent, 280, 281; R. C. 1845, p. 231, § 1.)

II. What the boat could or might have earned is a matter of mere speculation, not to be estimated by the jury. (Taylor v. Maguire, 12 Mo. 313; S. C. 13 Mo. 517; Blanchard v. Ely, 21 Wend. 342.)

BAY, Judge, delivered the opinion of the court.

This suit was brought in the St. Louis Circuit Court to recover damages for the seizure by the defendants of a steamboat called “Dubuque,” alleged to be the property of the plaintiff. The defendants, by their answer, put in issue plaintiff's corporate existence, also its ownership and possession of the boat, and deny its wrongful seizure and detention. They also set up a counter-claim, consisting of a promissory note for three hundred and thirty-three dollars and thirty-five cents, alleged to have been executed by plaintiff payable to the order of defendants. Plaintiff filed a replication denying the execution of the note. Judgment was rendered for plaintiff, to reverse which appellants rely upon several points, which we will notice in the order presented by the record:

1. It is contended that plaintiff had no power, under its acts of incorporation, to purchase or own a steamboat. The act of incorporation was obtained for the purpose of carrying on the mining and transportation of coal, etc.; and hence, in the third and fourth sections power is given to the company to construct and build a railroad or railroads from the coal lands in Callaway county to the Missouri river, at or near Coté Sans Dessein, and to acquire the right of way for the same. And by an amendatory act, approved March 5th, 1855, it is further provided that the company shall have power to purchase, hold and enjoy lands and tenements, hereditaments, goods, chattels and effects of what nature or kind soever, so far as needful, and purchased only for the carrying on of its business of...