Cavender v. Steamboat Fanny Barker

Decision Date31 March 1867
Citation40 Mo. 235
PartiesCAVENDER & ROWSE, Appellants, v. STEAMBOAT FANNY BARKER, Respondent.
CourtMissouri Supreme Court

Appeal from St. Louis Circuit Court.

The Fanny Barker having been sold by order of the St. Louis Circuit Court, notice was published requiring all persons having lien claims to file the same in said court. Pursuant to such notice, the appellants on the 4th day of October, 1866, filed an account containing one item, viz., “supplies, consisting of moneys furnished for the use of said steamboat at the request of the agent thereof, $10,000.”

On the 18th of October they filed an amended account for $4,262.88, “moneys advanced for purchasing supplies, paying wages, &c., at the request of the agent of said boat.” The last account alleges that the money was advanced upon several days therein stated, in various sums, commencing on the 2d day of January, 1866, and ending on the 29th March of same year.

The appellants went to trial upon the last mentioned account for $4, 262.88, without any pleadings being made up. A large number of lien creditors appeared (as well as her then owner, but who had purchased her subsequent to the time when the alleged demand of the plaintiffs accrued) and contested plaintiffs' recovery.

It appeared upon the trial (by the court) that the respondent was one of thirteen boats belonging to the “Johnsonville Packet Company; that said company, on the 2d of January, 1866, borrowed $10,000; on the 4th of said month, $10,000, and on the 8th of January, 1866, $10,000. All these sums were loaned upon the notes (which notes were not, nor were any of them surrendered, or offered to be surrendered, at the trial) of said company, endorsed by Nolan & Caffrey, and for which loans stock of said company amounting to $100,000 was hypothecated to the plaintiffs as security; also, that these loans were procured through the agency of one Stephen Haskell, the agent of said company in procuring the January loans, but had no authority except to sell the notes upon their own credit and that of the pledge of stock.

It further appeared that on the 24th day of March, 1866, said Johnsonville Packet Company borrowed $5,000 from claimants upon the notes of the company, endorsed by Nolan & Caffrey; all these notes had been renewed except that dated January 8, 1866, which was paid at maturity.

Rowse, one of the claimants, testified that said Haskell informed him of the purpose for which the January loans were wanted, and that the claimants obtained the money upon the credit of the property of the company, including its thirteen boats and its barges; but one witness testified that said Rowse had informed him that he (Rowse) had made said January loans upon said stock at the rate of thirty cents on the dollar. Witnesses Caffrey and Rowse testified that the loan made March 24, 1866, was needed that afternoon to pay off laborers, deck hands, &c., in order to enable the company to send off two boats the same evening.

The claimants examined Frank Knoble, treasurer and bookkeeper of said Johnsonville Company: who stated that he received the proceeds of said loans, less the discount; that he could not tell from the books of the company how any of the money thus raised was used; that it was collected and paid out as other money belonging to said company, &c.--There was no evidence as to the application of the money, or that any part thereof was used by the respondent. At the close of the case, they asked the following instructions:

1. If it appear from the evidence that the claimants advanced to the Johnsonville Packet Company divers sums of money, from time to time, in January and in March, 1866; that said packet company was then the owner of a line of steamboats of which the Fanny Barker was one, and which boats were used in navigating the waters of this State; that said advances, or either of them, were made by the claimants upon the representations of the company, or its agents, that the money was needed “to keep the steamboats running,” or to meet current expenses of navigating them, or for the purchase of supplies, then the said advances constitute a lien upon said steamboat Fanny Barker to the extent to which they were applied to her use and benefit.

2. If it appear from the evidence that the Johnsonville Packet Company had a common fund composed partly of money borrowed from the claimants in the manner, upon the representations and for the purposes stated in the foregoing instruction, and partly from money derived from other sources, that said packet company used said common fund indiscriminately to pay its indebtedness and to furnish its boats with the means of running in their ordinary business the presumption is that the money borrowed of claimants was used as far as necessary for the last named purpose, and it should be considered to have been so applied.

The court refused all said instructions, and, of its own motion, gave the following:

“The court decides as the rule of law governing this case, that money advanced to pay the debts of a boat already accrued for running expenses or supplies, gives no lien upon the boat; but that to establish his right to a lien the claimant must show affirmatively that he advanced his money to pay future expenses or for supplies yet to be furnished; and if the claimant thus establishes his right, it is no valid objection to his claim that the same owner had several boats to whom the claimant made such advances for all the said boats, without designating the amounts to be used by each, provided the amount used by or for each boat is satisfactorily shown; and then the lien against each boat is to the extent of the advance used for its benefit.”

The claim was rejected.

S. Holmes with Harding, for appellants.

Money loaned to a vessel to procure supplies, or to pay off a lien debt for supplies still subsisting, will constitute a new lien in favor of the lender. The court below decided the converse of this proposition in declaring the law to be, that “money advanced to pay debts of a boat already accrued for running expenses or supplies, gives no lien upon the boat but that to establish his right to the lien the claimant must show affirmatively that he advanced the money to pay future expenses.”--Phelps v. St. Bt. Eureka, 14 Mo. 532; St. Bt. Lebanon v. Grevison, 10 Mo. 537; Doans v. Child, Davis' U. S. Dist. Ct. R. 71; Abb. on Ship. 177 (Am. ed).

A party furnishing supplies is not bound to prove that he looked to the lien as a security for his debt, or that he made his advances upon the faith of it, or that he contracted for a lien at the time.--The Gustavia, 2 Blatch. & Howl. 189.

The statute creates the lien upon the mere fact of furnishing the supplies, without more. The creditor's intention has nothing to do with the operation of the law. To be sure, he may never avail himself of the lien; he may release in terms, or he may act so as to divest it, or by doing something inconsistent with his right to enforce it.--Barge Resort v. Brooke, 10 Mo. 532.

The court will look to the maritime law for the principles of its decisions, our statute being thence borrowed--St. Bt. Raritan v. Smith, 10 Mo. 527; 1 Pars. Mar. Law, 501; Gardner et al. v. Ship New Jersey, 1 Pet. Adm. R. 226.

By the express terms of our statute, the contracts of the owner for supplies are put on the same footing and are governed by the same principles as contracts by the master, so far as the creation of the lien i concerned--R. C. 1855, tit. Boats and Vessels--Ship Racket, 3 Mason, 255.

It is clear by the general maritime law that a party whose goods are sold for supplies has a lien on the ship. Bee Adm. R. 116; ibid. 264--the master has the same lien for advances made by him, which may be enforced in admiralty.--Emerigon on Mar. Loans, ch. 12, § 4, p. 234.

It appears from the cash book that money was used by the boat, subsequent to the loan, for these three purposes:--1. To return charges collected by the boat and used to pay expenses; 2. To pay for supplies already furnished to the boat; 3. For future expenses. In the first case a lien is created by general maritime law-- vide case of ship Racket, above cited; in the 2d, the case of the Eureka is in point; in the 3d, there can be no question whether the money borrowed was...

To continue reading

Request your trial
3 cases
  • Hayford v. Cunningham
    • United States
    • Maine Supreme Court
    • March 7, 1881
    ... ... 49 Ala. 436; Crawford v. Bark Caroline ... Reed, 42 Cal 471; Cavender v. Fanny Barker, 40 ... Mo. 235; Wyatt v. Stackley, 29 Ired. 279; ... Sherman, 35 Wis. 103; Weston v ... Morse, 40 Wis. 455; Steamboat General Buell v ... Long, 18 Ohio St. 521; Foster v. Busteed, 100 ... ...
  • Hunter v. St. Louis & M. V. Transp. Co.
    • United States
    • Missouri Court of Appeals
    • May 3, 1887
    ... ... admiralty, are unconstitutional. Cavender v. Steamboat ... Barker, 40 Mo. 235; Aiken v. Steamboat ... Bismarck, 3 ... ...
  • Joyall v. Steamboat Goldfinch
    • United States
    • Missouri Supreme Court
    • March 31, 1868
    ...State jurisdiction to enforce a lien for such supplies is not ousted or excluded by the jurisdiction of the United States. (Cavender v. Str. Fanny Barker, 40 Mo. 235.) HOLMES, Judge, delivered the opinion of the court. This case is not distinguishable from the cases of Cavender v. Str. Fann......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT