Conrad v. Montcourt
| Decision Date | 23 March 1897 |
| Citation | 39 S.W. 805,138 Mo. 311 |
| Parties | Conrad v. De Montcourt, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
The bond mentioned in the opinion of the division is as follows:
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.
Reversed and remanded.
Phillips, Stewart, Cunningham & Eliot for appellants.
(1) The plaintiff was owner and master of the boat and barge, and had contracted and was bound to safely carry and deliver the cargo, unless prevented by act of God or the public enemy. He owed to the defendants the utmost efforts of himself, his boat and her crew to accomplish that result. Under these circumstances he can not become a salvor. Newson on Salvage, pp. 28, 29; 1 Conk. Adm. [2 Ed.], p. 345; The Schooner Wave v. Hyer, 2 Paine (U.S.), 131; Miller v. Kelly, 1 Abbott's Admiralty Rep. 564; Kidney et al. v. The Ocean Prince, 38 F. 259. (2) If, in the face of extraordinary peril during the voyage, the master had exacted from the owners of the cargo a promise of salvage or extra compensation for saving the cargo, and if the cargo had been saved by extraordinary exertions of the master and crew in consequence of such promise, no salvage or extra compensation could be claimed. Public policy does not permit such a claim. (3) When, on arrival of this cargo at destination, the plaintiff, as master, made pretense that there was a valid claim against the cargo, and that he would not deliver the cargo until that claim was secured, if defendants had paid him money in satisfaction of that claim, they could afterward sue him, and, upon showing that the claim was groundless, recover the money so paid. Chamberlain v. Reed, 13 Me. 357; Geraldes v. Donison, 1 Holt's nisi prius, Rep. 346. (4) If plaintiff had not been the carrier of these goods, and had been otherwise capable of becoming a salvor of them, still if his services as salvor had been rendered necessary by his negligence, he could not claim salvage. Newson on Salvage, p. 15, and cases cited. The Charles E. Soper, 19 F. 844; The Krona, 28 F. 318; The Clarita, etc., 23 Wall. 1. (5) The barge on which this lumber was stored for carriage had no oars, sails, steam or other power of locomotion or movement. It was not a ship or vessel in contemplation of law. There was never during the voyage any "wreck" or peril which terminated the voyage or plaintiff's duty to carry the lumber to Cairo. (6) If there was a case of general average then ship, cargo and freight must be made to contribute, but in the adjustment of average which was made in this case, cargo and freight only were required to contribute and the ship was excused.
David Murphy and Campbell & Ryan for respondent.
(1) The court committed no error in admitting the two bills of lading in evidence. The evidence shows that Cross, the foreman of the Hickman Lumber Company, was the man in charge of this lumber for shipment on plaintiff's boat. It is elementary, that a man who entrusts business to another to transact for him, is bound by the act of the servant within the scope of the usual business confided to him, because the master is presumed to authorize and approve the known acts that are incident to such an employment. Story on Agency, sec. 56; Squire v. R. R. Co., 98 Mass. 239. (2) One entrusted with the shipment by a steamboat, is expected, in the usual course in such employment, to take a bill of lading from the carrier. Story on Agency, sec. 127; Nicholson v. Golden, 27 Mo.App. 132. (3) To entitle defendant to an admission of such testimony, he should state the acts out of which the injury grew, with a reasonable degree of particularity, and then it may be averred generally that such acts were negligently done. Waldhier v. R. R. Co., 71 Mo. 514; Gurley v. R. R. Co., 93 Mo. 445; Dickson v. R. R. Co., 104 Mo. 502. (4) This is not a claim for salvage, as the learned counsel seem to think, but it is a claim for extraordinary expenses incurred for the common benefit. The law is well settled in this country that such expenses come under the law of general average. Parsons, Shipping and Admiralty, pp. 385, 386-432. In McAndrews v. Thacher, 3 Wallace, page 365, Justice Clifford said: "Extraordinary expenses incurred for the joint benefit of ship and cargo, and which become necessary in the consequence of a common peril, are usually regarded as the proper subjects of general average." See, also, Dilworth v. McKelvy, 30 Mo. 149. The point made that if there was a case of general average, then ship, cargo and freight must be made to contribute, is not sound, for in the adjustment of a general average, where the claims are founded on expenses, only that part of the property for the benefit of which the expense was incurred contributes. See 1 Parsons, Admiralty and Shipping, pp. 435-465; Thacher v. McAndrews, 3 Wallace, 347.
Judge Robinson is absent.
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, Illinois.
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, Missouri, and Barfield, Arkansas, to Cairo, in July, 1891, at the rate of $ 2.50 per thousand 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 toward said expenses, etc., was stated to be $ 966.94; but that defendants had refused to pay the same, after having due notice.
The answer denies the facts of the petition, and...
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