Chouteau v. Goddin

• Decision Date: 31 October 1866
• Citation: 39 Mo. 229
• Parties: PIERRE CHOUTEAU, Jr., JAMES HARRISON, FELIX VALLE, AND JULES VALLE, Respondents, v. ARCHIBALD C. GODDIN AND JOSEPH L. STEPHENS, Appellants.
• Court: Missouri Supreme Court

39 Mo. 229

PIERRE CHOUTEAU, Jr., JAMES HARRISON, FELIX VALLE, AND JULES VALLE, Respondents,

v.ARCHIBALD C. GODDIN AND JOSEPH L. STEPHENS, Appellants.

Supreme Court of Missouri.

October Term, 1866.

Appeal from St. Louis Court of Common Pleas.

This was an action brought to October term, 1863, for damages for the alleged wrongful taking and carrying away of certain property of plaintiffs. The petition alleged a purchase by plaintiffs, as partners under the firm name of Chouteau, Harrison & Valle, in October, 1862, at a public sale of property of the United States, a certain damaged and sunken steamboat, with her tackle and apparel, lying on the Tennessee shore of the Mississippi river opposite “Island No. Ten;” and that after said purchase defendants took possession of said boat on or about the 13th October, 1862, and wrecked said boat and took out of her the boilers, engines, machinery, &c., which they allege to be worth $7,500.

The answer denied that plaintiffs were the purchasers of the steamer described in the petition, but averred that defendants were the purchasers of said property at a sale made by one Geo. D. Wise, captain and quartermaster of the United States, upon a printed advertisement and which was read at said sale.

Defendants further alleged that the boat mentioned in the petition, though not named therein, was named in said notice of sale, and was the Grampus and by that name was known, described and sold at such sale, and by that name was bought by defendant Stephens. At that sale defendant Goddin bought the Yazoo, and after said sale acquired a joint interest with said Stephens in the Grampus, and said Stephens acquired a joint interest with Goddin in the Yazoo; that at said sale plaintiffs bought the Mohawk and three other boats named in said notice of sale, but did not buy the Grampus; the boats were all sold as they then lay. That about the 9th of October defendant Goddin went down with hands to take possession of the Yazoo and Grampus and wreck them, and plaintiffs also sent down at the same time hands, under the direction of one Carlin, to wreck the boats bought by them. There was then some doubt whether the boat in controversy was in fact the Grampus or the Mohawk, all parties being then in doubt where the Grampus actually lay; but it was soon made to appear by statements of residents cognizant of the facts, that the boat in controversy was the Grampus, and that the Mohawk lay about six miles below. That both of said boats had been so injured and defaced by the action of the water while the river was high that their names were not apparent, and it was only by the statements of those who knew the boats before they were damaged that their identity could be determined. That when plaintiffs by their agents commenced wrecking said Grampus, defendants notified them to desist. That afterwards, about the 20th October, said property being in the actual possession of no one at the time, defendants rightfully took and carried the same away as their own lawful property, without any unlawful force or violence, and converted same to their own use; denied that the property was in plaintiff's possession at the time it was taken, or that it was previously ever in the lawful possession of plaintiff; denied that said boat was sold and bought by the description of any precise locality, but said that the same was sold and bought by name as the steamer Grampus.

Wise, assistant quartermaster U. S. A., testified to the effect that a number of boats, including the Grampus, had been used by the rebels in the late war, and were wrecked by them in the vicinity of Island No. 10 and abandoned; they were afterwards taken possession of by witness and sold at public auction; says he took them as prizes of war; sold them under approval of his commanding officer at Cairo, Ills., about 3d October, 1862; public notice of sale given by advertisement in St. Louis, Cairo, and Cincinnati newspapers; that advertisement is as follows:

“Sale of steamers.--I shall offer at public sale on the 3d day of October next, at Cairo, Ills., the following wrecked steamboats captured from the rebeis and now lying near Island No. 10 and New Madrid: Prince, Yazoo, John Simonds, Grampus, Mohawk, and Winchester. They will be sold as they lie, and payment to be made within ten days after the sale, in Treasury notes. Cairo, Ills., Sept. 25, 1862.--Geo. D. Wise, Capt. & Ass't Q. M.”

The witness further stated that plaintiffs bought at that sale the Manchester, Mohawk, John Simonds, and Prince. He (witness) gave plaintiffs--or rather Chouteau, Harrison & Valle--a bill of sale of the boats bought by them, of which the following is a copy:

“Cairo, Ills., October 3d.- I hereby certify that I have sold to Chouteau, Harrison & Valle, through their agent J. D. Carlin, acting under orders from M. C. Meigs, Q. M. Gen. U. S. A., and acting under Rear Admiral Chas. H. Davis, commanding Mississippi flotilla, the following named boats at public auction: Steamer Manchester, $130; steamer Mohawk, $475; steamer John Simonds, $1,000; steamer Prince, $935=$2,540.--G. D. Wise, Capt. & Ass't Q. M.”

“J. L. Stephens bought the Grampus at said sale. I executed a bill of sale to him for the same, which is hereto attached and marked”

‘(Exhibit A.)--Office of U. S. Gunboat Flotilla, Cairo Ills., October 3, 1862.--I hereby certify that I have sold to J. L. Stephens, acting under orders from M. C. Meigs, Q. M. Gen. U. S. A., and Act'g Rear Admiral C. H. Davis, comd'g Mississippi flotilla, the following named steamboat at public auction: Steamer Grampus.--G. D. Wise, Capt. & Ass't Q. M.’

The boats were sold on the terms and conditions as mentioned in the advertisement, and I referred frequently to the report of Capt. Bissell, which I had in my hands at the time of sale. Mr. Stephens paid for the boat on the same day and place of sale. J. D. Carlin represented Chouteau, Harrison & Valle at that date; the paper hereinbefore copied as given to Chouteau, Harrison & Valle was given to Carlin at Cairo on the day of sale; the matter was not settled until afterwards, on the 27th day of December, 1862; the matter was fully settled with Chouteau, Harison & Valle. In making the sale I acted under the usual authority, and proceeded in the usual method of disposing of such property. I am under the order of the War Department.”

On cross-examination witness further stated, in substance, that he never saw any of these wrecks, except such a view as he could have on passing down the river; saw no names; only knew of the names from rumor. Witness being shown paper marked “189,” in his book of registered letters, said, “it is an unofficial report of Capt. Bissell, of the engineers, to me, giving results of an examination of certain wrecked rebel boats captured by the gunboat flotilla, with a view to enable me to make the best disposition of the property for the interest of the Government. He examined wrecks and made report at my instance. This paper is the original report made by Bissell and handed to me; it is in my custody.” Witness refused to give the original, but gave a sworn copy, which was objected to by defendants' counsel as irrelevant and incompetent. The paper is as follows:

“Steamer Winchester, tackel and apparel, lies on bar Missouri shore opposite No. 10, value $_____. Steamer Mohawk, tackel and apparel, on Tennessee shore, opposite Island No. 10; machinery and boilers, new and strong, entirely over ( sic) water; value $2,000. Steamer John Simonds, tackel and apparel; machinery and boilers large and nearly new, very good, wrecked and in a barge alongside; in river near Island No. 10, value 7 to $8,000. Steamer Yazoo, tackel and apparel; new boat, new boilers and machinery; she lies on her side, but straight, and can be easily saved entire; on bar No. 10; value $5,000. Steamer Grampus (mate of Mohawk), nearly under water, below Island No. 10, value $1,000. Steamer Prince, tackel and apparel; lies on bar opposite New Madrid, high and dry; value $2,000; considerable ammunition on her, but dangerous and hardly worth saving. Estimated amount of projectiles at New Madrid at No. 10, two thousand tons; part left at each place--part (1,000 tons) taken to Memphis, 200 tons to Columbus;--they have been so mixed up that I cannot distinguish or specify amount from either place. (Signed,) J. W. Bissell.”

The witness further stated that this was the paper he said he held in his hand when sale was made and boats were being cried off; also, that he gave to Chouteau, Harrison & Valle a bill of sale, a copy of which is annexed to deposition. Defendants' counsel objected to question asking for the paper and to the introduction of a copy.

“Received, St. Louis, Mo., December 27, 1862, of Chouteau, Harrison & Valle, of St. Louis, Mo., twenty-five hundred and forty dollars, being payment in full for the following wrecks of steamers purchased at public sale at Cairo, Ills., October 3, 1862, viz: Steamer Winchester, tackel and apparel; lies on bar on Missouri shore opposite Island No. 10--$130. Steamer Mohawk, tackel and apparel, on Tennessee shore opposite Island No. 10; machinery and boilers new and strong, entirely out of water--$475. Steamer John Simonds, tackel and apparel; machinery and boilers large and nearly new, very good, wrecked and on a barge alongside; in river near Island No. 10--$1,000. Steamer Prince tackel and apparel; lies on bar opposite to New Madrid, high and dry; considerable ammunition on her, but damaged badly and hardly worth saving--$935--$2,540.-- Geo. D. Wise, Capt. & Ass't Q. M.”

He said the foregoing was a correct copy. Witness stated, in answer to question which was objected to, that no question arose at time of sale as to the name of the boat secondly described in Bissell's report and in bill of sale to Chouteau, Harrison & Valle. In answer to question whether the description of the localities of these boats as contained in Bissell's report were read at the sale before the...