Clark v. Humphreys

• Decision Date: 31 March 1857
• Citation: 25 Mo. 99
• Court: Missouri Supreme Court
• Parties: E. W. CLARK & BRO., Appellants, v. HUMPHREYS, Respondent.

25 Mo. 99

E. W. CLARK & BRO., Appellants,

v.HUMPHREYS, Respondent.

Supreme Court of Missouri.

March Term, 1857.

1. A master of a vessel, as such, has power to bind the owners for necessaries and repairs only; the burden of proving the necessity lies upon the creditor.

2. A custom or usage of trade, to be valid and binding, must be reasonable.

3. A custom or usage among masters and clerks of steamboats, for the master to draw bills of exchange upon the clerk, and negotiate the same, is an unreasonable custom, and cannot be invoked to fix a liability upon the owners to the parties to whom such bills of exchange may be transferred.

Appeal from St. Louis Court of Common Pleas.

This was a suit brought by E. W. Clark & Bro., bankers, payees of the bills of exchange set forth below, against Solon Humphreys and Henry Corwith, as part owners of the steamboat “Michigan.”

“Exchange for $1,500. St. Louis, Mo., 10th July, 1854. Three days after sight of this first of exchange (second unpaid), pay to the order of E. W. Clark & Bro., at the office of Samuel Smith & Co., fifteen hundred dollars, for value received, for steamer Michigan and owners. [Signed] per Robert A. Reilly, master. To W. M. Tompkins, Jr., clerk of steamboat Michigan, New Orleans, La.”

“Exchange for $375. St. Louis, Mo., 13th July, 1854. Two days after sight of this first of exchange (second unpaid), pay to the order of E. W. Clark & Bro., three hundred and seventy-five dollars, for value received, account of steamboat Michigan and owners. [Signed] per Robert A. Reilly, master. To Wm. M. Tompkins, Jr., clerk steamboat Michigan, New Orleans, La.”

The petition set forth the drawing of the above bills, on behalf of said steamboat Michigan, by the master thereof, R. A. Reilly, and their acceptance, July 20th, 1854, by the drawee, W. M. Tompkins, clerk of said boat; also their presentment for payment at maturity, and their protest for non-payment; of all of which defendants are alleged to have had due notice.

The suit was dismissed as to Corwith. At the trial the following proof was introduced by plaintiffs: That at the dates of said bills of exchange the defendant, Solon Humphreys, and Henry Corwith and Robert A. Reilly, were owners of the steamboat Michigan, and said Reilly was master, and William M. Tompkins, clerk of said steamboat; that the bills of exchange sued on were drawn by said Reilly, and accepted by said Tompkins, as stated in the petition; that they were protested for non-payment; that neither the drawer nor the acceptor of said bills, nor the owners of said steamboat, provided any funds for the payment thereof; that said Tompkins accepted said bills solely as clerk of said boat, and had no funds in his possession for their payment from the time the same were drawn till their maturity; that “for the last twenty years it has been the general custom of the masters of steamboats to draw bills of exchange like those sued on; that it was often specified in such bills on what account they were drawn; that this is often done for the purpose of raising money to defray the expenses of running steamboats, and for paying charges; that it has been a general custom for such bills to be drawn and negotiated, and such was the usual practice of officers of steamboats.”

Upon the above evidence the plaintiffs asked the court to give the following instructions: “1. The notice to one of several owners of a steamboat of the dishonor of a bill of exchange drawn by the officers of a steamboat is a notice to all. If the jury find from the evidence that Robert A. Reilly was a part owner of the steamer Michigan at the date of the bills of exchange sued on, and that the said Reilly had due notice of the presentation and dishonor of said bills of exchange, such notice is sufficient to bind the other owners of said boat; provided the jury shall further find that the drawing of bills of exchange is within the usual and customary business of the masters and clerks of steamboats. 2. If the jury find from the evidence that the bills of exchange were drawn and accepted as stated in plaintiffs' petition, and that said Reilly and said Tompkins knew, when said bills were drawn and accepted, and when they were payable, that said bills would not be paid when due, and that, in fact, no money was provided by the officers or owners of said boat to pay said bills at their maturity, then the owners of said boat cannot relieve themselves, and are not discharged from liability, in consequence of not having received notice of the non-payment of said bills of exchange. 3. If the drawing, endorsing and accepting of bills of exchange be within the ordinary and customary business of masters and clerks of steamboats, then such acts may be binding upon the owners of steamboats whose masters or clerks draw, endorse or accept such bills, and the owners of steamboats may be held liable on said bills. 4. If the jury find from the evidence that Robert A. Reilly was, at the date of the bills of exchange sued on, master of the steamboat “Michigan,” and drew the bills sued on on William M. Tompkins, clerk of said boat; that said Tompkins was then clerk of said boat, and accepted the same; that said bills were duly presented for payment, and payment thereof was duly demanded, according to the tenor of said bills, and was refused; that said bills were duly protested for non-payment, and that the defendant had due notice of said demand, refusal and protest; and if the jury shall further find that it was within the usual and ordinary scope of the business of the officers of boats to draw and accept bills of exchange, they...