Cobb v. Wallace

• Decision Date: 31 December 1868
• Parties: John Cobb et al., v. W. B. Wallace et al.
• Court: Tennessee Supreme Court

45 Tenn. 539

John Cobb et al.,

v.W. B. Wallace et al.

Supreme Court of Tennessee.

December Term, 1868.

FROM DAVIDSON.

This case was submitted to a jury at the September Term, 1867, who found the issues in favor of the defendant. The plaintiff appealed to this Court. Judge MANSON M. BRIEN, presiding.

N. & ED. BAXTER, for Plaintiff.

R. L. CARUTHERS & W. F. COOPER, for Defendant.

GEORGE ANDREWS, J., delivered the opinion of the Court.

This action was brought by Cobb and others, the plaintiffs in error, against the defendant Wallace, in the Circuit Court for Davidson County to recover the value and the hire of a barge owned by the plaintiffs, and theretofore hired by them to the defendant.

The declaration in different counts, charges the defendant for breach of a contract of hire, in failing to redeliver the barge; for negligence in keeping the barge, whereby it was lost to the plaintiffs, etc. The third count is for the conversion of the barge by the defendant.

Several pleas were filed by the defendant one of which was in substance, that, against his will and without any default upon his part, the barge was taken from his possession by the military authorities of the United States, and by them converted to their own use.

The evidence in the record tends to show the following state of facts:

In December, 1863, the plaintiffs' barge being at Hawesville, Ky., a place on the Ohio River, and having then on board a load of coal, the defendant purchased the coal from the plaintiffs, and at the same time hired the barge at the rate of three dollars per day, for the purpose of conveying the coal to Nashville. These bargains were made in parol between the defendant in person, and D. Looney & Co., the agents of the plaintiffs. There is evidence tending to prove that this parol contract of hiring, was, that the defendant should employ the barge to convey said load of coal to Nashville, and that the barge should be returned to the plaintiffs at Hawesville, as soon as the coal could be taken to Nashville and discharged; and that no authority was given to defendant to use the barge in any other manner, or for any other purpose. Soon after the making of these contracts the barge, with its cargo of coal, was delivered to J. W. Ross, the agent of the defendant, who executed and delivered to D. Looney & Co., the following receipt:

“Hawesville, December 12, 1863.

Received from D. Looney & Co., one Barge ‘Aurora, No. 8,’ containing one thousand one hundred and sixty-six bushels of coal, which I agree to pay D. Looney & Co., at Louisville at the rate of twenty cents per bushel. And I further agree to hire said barge, ‘Aurora, No. 8,’ and pay D. Looney & Co., three dollars per day from this date, until the barge is returned at Hawesville, in good order.

J. W. Ross, agent of W. B. Wallace.”

The barge arrived at Nashville, and was unloaded early in January, 1864. The defendant then retained it, and for some length of time, employed it in the business of transporting wood upon Stone River. Looney, one of the plaintiffs, agents, called upon defendant frequently, both by letter and personal application, for the return of the barge, within six weeks of the hiring, and frequently after that time, until he heard of its seizure as hereinafter stated. About the middle of April, 1864, the defendant sent the barge from Nashville in charge of his agent, on its way to Hawesville, for the purpose of delivering it to the plaintiffs. But on its way thither, the barge was seized by persons in the military service of the United States, by what authority does not appear and was appropriated to the use of the military authorities, and has never been recovered or returned to the plaintiffs.

The Circuit Judge instructed the jury as follows: “That it was his duty to construe the contract upon which this action was predicated; that in doing so, he would instruct them, that, under the contract, the defendants had it at their option to say when the contract was at an end; but that so long as they paid the stipulated hire for the barge, if they so elected, they might continue to use the same, and that the contract for the use of the barge would not be terminated until the defendant so elected; that they might look to the fact, that the plaintiffs had written letters to the defendant demanding the boat, after the commission of the act which was contended by plaintiffs to constitute a conversion as a waiver of any rights that had enured to the plaintiffs, even had the facts in themselves been sufficient to cause a conversion; that the contract was in writing, and that it was a general contract of hiring; that parol testimony could not be looked to, to show that the boat was hired for a particular purpose, or that it was not to be used for a particular purpose; and that from all that appeared upon the face of the contract, the defendant might use it for any purpose he saw proper.”

We think that there is clearly error in the above charge. It assumes and positively declares that the written receipt or memorandum contains the true and only contract between the parties in regard to the hiring. The plaintiffs had introduced evidence from which the jury might have found that the contract for the hire of the barge had been made by parol...