Conrad v. De Montcourt

CourtUnited States State Supreme Court of Missouri
Writing for the CourtBarclay
Citation39 S.W. 805,138 Mo. 311
PartiesCONRAD v. DE MONTCOURT et al.
Decision Date23 March 1897
39 S.W. 805
138 Mo. 311
CONRAD
v.
DE MONTCOURT et al.
Supreme Court of Missouri, Division No. 1.
March 23, 1897.

APPEAL — AMOUNT IN DISPUTE — JURISDICTION OF STATE COURTS — ACTION INVOLVING MARITIME QUESTIONS — AVERAGE BOND — PLEADING.

1. A counterclaim may be considered in ascertaining the "amount in dispute" in an action for the purpose of determining the jurisdiction of the supreme court.

2. The fact that the rights of the parties to an action are to be determined by the principles of maritime law does not exclude the jurisdiction of the state courts where the action is a personal one, based on contracts enforceable under the common law, which is in force in the state; the common-law remedies of suitors in civil causes of admiralty and maritime jurisdiction having been saved to them by the provisions of the judiciary act of 1789 (Rev. St. U. S. 1874, § 563).

3. The execution of an average bond by the owner of the cargo of a sunken vessel, binding him to the payment of such loss, damages, and expenses as shall be made to appear to be due from him, does not absolutely conclude him as to his liability for the amount charged against him by the adjuster, nor preclude him from defending on the ground that the loss resulted from the negligent handling of the vessel.

4. A pleading alleging negligence in general terms, unless objected to before trial, and when issue is taken thereon by the pleading of the adverse party, is sufficient to authorize the introduction of evidence in support of such allegations.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Peter Conrad against Louis De Montcourt and George E. O'Hara on an average bond, and to recover a charge for freight. Defendants pleaded a counterclaim for damages alleged to have been sustained by reason of plaintiff's negligence as a carrier. Judgment for plaintiff, and defendants appeal. Reversed.

The bond mentioned in the opinion of the division is as follows:

"Average Bond. Whereas, the Steamer Nellie Speer, with the barge William Toll in tow, whereof Peter Conrad, master, said barge having on board a cargo of merchandise, sailed from the port of Barfield, Ark., bound for Cairo, Ill., and, in the due prosecution of her said voyage met with disaster, by which said barge William Toll, with her cargo of lumber, was sunk, by which means certain losses and expenses have been incurred, and other expenses hereafter may be incurred in consequence thereof, which, according to the usage of this port, constitute a general average, to be apportioned on the said vessel, her earnings as freight, and the cargo on board: Now, we, the subscribers, owners, shippers, consignees, agents, or attorneys of certain consignees of said vessel or cargo, do hereby, for ourselves, our executors and administrators, severally and respectively, but not jointly, or one for the other, covenant and agree to and with Peter Conrad, master of said steamer Nellie Speer, having said barge in tow, and all others whom it may concern, that the loss and damage aforesaid, and other incidental expenses thereon, as shall be made to appear to be due from us, the subscribers to these presents, either as owners, shippers, consignees, agents, or attorneys of certain consignees of said vessel or cargo, shall be paid by us, respectively, according to our parts or shares in the said vessel, her earnings as freight, and her said cargo, as shall belong or be consigned to us, or shall belong or be consigned to any person or persons with whom we are co-partners, agents, or attorneys, or in any manner concerned therein: provided, such losses and expenses aforementioned be stated and apportioned by G. W. Dougherty, average adjuster, in accordance with the established usage and laws of this state in similar cases. And for the true performance of all and singular the premises we do severally hereby bind ourselves, our respective heirs, executors, and administrators, to the said

[39 S.W. 806]

Peter Conrad, master of said steamer Nellie Speer, having said barge in tow, in the penal sum of five thousand and twenty-eight 80/100 dollars, lawful money of the United States. In witness whereof we have to these presents set our hands and seals, in the city of Cairo, Illinois, this 25th day of June, in the year of our Lord one thousand eight hundred and ninety-one. De Montcourt & O'Hara. [Seal.]"

The words printed above in italics were written into blank spaces; the rest of the bond was a printed form.

The items of expenses found by the adjuster and on which his adjustment of average, February 28, 1892, was based, are as follows:

Wages of the crew of the Nellie Speer $ 353 34
                Subsistence of the crew of the Nellie
                 Speer ............................. 206 00
                Fuel consumed by the Nellie Speer ... 120 00
                Extra labor ......................... 33 00
                Use of hose for washing lumber ...... 6 25
                Marine protest ...................... 5 00
                Committee assessing damage to lumber
                 ................................... 6 00
                Hire of barge ....................... 132 00
                Hire of barge ....................... 148 00
                Peter Conrad, for advancing $1,009.59
                 ................................... 63 03
                Adjuster's fees ..................... 25 00
                 _________
                 Total ............................. $1,097 62
                

The adjuster charged $966.94 against the cargo of defendants' lumber and $130.68 against the freight. The other material facts are stated in the opinion.

Phillips, Stewart, Cunningham & Eliot, for appellants. David Murphy and Campbell & Ryan, for respondent.

BARCLAY, C. J.


Plaintiff's action against the defendants, Messrs. De Montcourt and O'Hara, relates to a shipment of lumber by water from certain points on the Mississippi river to Cairo, Ill. The petition is in two counts. The first count sets forth a claim by plaintiff, as owner of the steamboat Nellie Speer and barge William Toll, for freight earned in carrying 298,202 feet of lumber, at the instance of defendants, from Tyler, Mo., and Barfield, Ark., to Cairo, in July, 1891, at the rate of $2.50 per 1,000 feet, which rate defendants are said to have promised to pay. The second count is for part of the expenses incurred by plaintiff "in the salvage of the freight and cargo on board said barge," by reason of which (it is alleged) defendants, "at Cairo, Illinois, promised to pay to plaintiff the loss and damage aforesaid, and the incidental expenses thereon, as should be made to appear to be due from said defendants, according to their part or shares in the said cargo of lumber," "provided that such losses and expenses be stated and apportioned by G. W. Dougherty, average adjuster, in accordance with the established usage in that vicinity in similar cases." The count then proceeds to allege that said losses and expenses were apportioned and adjusted in accordance with the law of general average and the said established usage, by said adjuster, by a "writing called an `average bill,'" duly filed, and wherein defendants' proportion of contribution towards said expenses, etc., was stated to be...

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19 practice notes
  • Cushulas v. Schroeder and Tremayne, Inc., No. 20762.
    • United States
    • Missouri Court of Appeals
    • January 7, 1930
    ...Co., 180 Mo. App. 287, l.c. 298, 165 S.W. 346; Le May v. Missouri Pacific Ry. Co., 105 Mo. 361, 16 S.W. 1049; Conrad v. De Montcourt, 138 Mo. 311, 39 S.W. 805; Schneider v. Missouri Pacific Ry. Co., 75 Mo. 295; Sullivan v. Missouri Pacific Ry. Co., 97 Mo. 113, 10 S.W. 852; Mack v. St. Louis......
  • Hanke v. City of St. Louis, No. 24616.
    • United States
    • United States State Supreme Court of Missouri
    • May 23, 1925
    ...evidence does tend to prove contributory negligence upon his part." The ruling made in these cases governs here. Conrad v. De Montcourt, 138 Mo. 311, 39 S. W. 805, cited by counsel was not a case in which the instant question was involved. There was in that case no question of contributory ......
  • Baugher v. Construction Co., No. 28429.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...is sufficient. Cramer v. Kansas City etc. Co., 279 S.W. 43; Collinsworth v. Zinc & Chemical Co., 260 Mo. 703; Conrad v. De Montcourt, 138 Mo. 311; Schneider v. Railroad, 75 Mo. 295; Nagel v. Railway, 75 Mo. 660; Le May v. Railroad, 105 Mo. 362; Morgan v. Mulhall, 214 Mo. 451; State ex rel. ......
  • Wallower v. Webb City
    • United States
    • Missouri Court of Appeals
    • April 7, 1913
    ...the particular acts, unless objected to by motion or otherwise before trial (Schneider v. Railroad, 75 Mo. 295; Conrad v. De Montcourt, 138 Mo. 311, 325, 39 S. W. 805; Borden v. Falk Co., 97 Mo. App. 566, 570, 71 S. W. We cannot assent to the proposition that plaintiff was under no obligati......
  • Request a trial to view additional results
19 cases
  • Cushulas v. Schroeder and Tremayne, Inc., No. 20762.
    • United States
    • Missouri Court of Appeals
    • January 7, 1930
    ...Co., 180 Mo. App. 287, l.c. 298, 165 S.W. 346; Le May v. Missouri Pacific Ry. Co., 105 Mo. 361, 16 S.W. 1049; Conrad v. De Montcourt, 138 Mo. 311, 39 S.W. 805; Schneider v. Missouri Pacific Ry. Co., 75 Mo. 295; Sullivan v. Missouri Pacific Ry. Co., 97 Mo. 113, 10 S.W. 852; Mack v. St. Louis......
  • Hanke v. City of St. Louis, No. 24616.
    • United States
    • United States State Supreme Court of Missouri
    • May 23, 1925
    ...evidence does tend to prove contributory negligence upon his part." The ruling made in these cases governs here. Conrad v. De Montcourt, 138 Mo. 311, 39 S. W. 805, cited by counsel was not a case in which the instant question was involved. There was in that case no question of contributory ......
  • Baugher v. Construction Co., No. 28429.
    • United States
    • United States State Supreme Court of Missouri
    • April 7, 1930
    ...is sufficient. Cramer v. Kansas City etc. Co., 279 S.W. 43; Collinsworth v. Zinc & Chemical Co., 260 Mo. 703; Conrad v. De Montcourt, 138 Mo. 311; Schneider v. Railroad, 75 Mo. 295; Nagel v. Railway, 75 Mo. 660; Le May v. Railroad, 105 Mo. 362; Morgan v. Mulhall, 214 Mo. 451; State ex rel. ......
  • Wallower v. Webb City
    • United States
    • Missouri Court of Appeals
    • April 7, 1913
    ...the particular acts, unless objected to by motion or otherwise before trial (Schneider v. Railroad, 75 Mo. 295; Conrad v. De Montcourt, 138 Mo. 311, 325, 39 S. W. 805; Borden v. Falk Co., 97 Mo. App. 566, 570, 71 S. W. We cannot assent to the proposition that plaintiff was under no obligati......
  • Request a trial to view additional results

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