DeBaun v. Atchison

• Decision Date: 31 March 1851
• Citation: 14 Mo. 543
• Parties: DEBAUN v. ATCHISON ET AL.
• Court: Missouri Supreme Court

14 Mo. 543

DEBAUN

v.ATCHISON ET AL.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO ST. LOUIS CIRCUIT COURT.

This case was an action in assumpsit, founded upon a contract of affreightment. There are three counts--the first and second setting forth that appellant shipped at the city of St. Louis, on board of the steamboat Amaranth, of which respondents were owners, ninety-one bird-cages to be transported to the city of New Orleans, which defendants received upon said boat, and promised to transport to New Orleans for a certain reasonable reward, and then deliver the same to appellant. That appellant had ever been ready at said New Orleans to receive said cages and pay for their transportation, but that respondents have never delivered them to him and that more than sufficient time has elapsed for their transportation. The third count is for goods, &c., to-wit: 91 bird-cages sold and delivered by appellant to respondents. Defendants pleaded the statutory general issue of coming and defending the demand of the plaintiff. Upon the trial the plaintiff offered in evidence a receipt as follows, to-wit: “St. Louis, October, 5, 1848. Received of G. DeBaun, in good order, ninety-one bird-cages, on board of steamer Amaranth--91--Brooks, clerk.” Defendants admitted that this was the receipt of the boat; that defendants were the owners and that the boat, when the cages were shipped, was bound for New Orleans and made the trip. Merrill Davis sworn, testified that the cages were worth $192 50. On this evidence the appellant rested. Defendants then read the deposition of Brooks, who testified that at the time the cages were shipped he was second clerk of the boat--that a man by the name of Farrington brought the cages on board and told him that he was going to take them to New Orleans, and asked him about the propriety of getting them insured--that he advised him against it, but that afterwards, about an hour before the boat started, he came on board and told him that he had concluded it was best to get them insured and asked Brooks for a receipt for them, when Brooks asked him for his name, he replied put it in the name of DeBaun--I want to get them insured--he so made the receipt--he never saw DeBaun in the transaction. Farrington took charge of the cages, rubbed them up, put them up when they fell down, paid the freight for them at New Orleans and there received them, but produced no receipt nor was asked for any. On the cross-examination he said that a man by the name of Davison was with Farrington when the receipt was given, but does not know which asked for the receipt, but thinks it likely that it was Davison who seemed to be the talking partner of Farrington--he knew that Davison had had various transactions with DeBaun before--he had shipped freight for him and paid an order drawn on him by Davison--thinks it likely that it was Davison who directed that the receipt should be drawn in DeBaun's name. On the arrival of the boat at New Orleans, no one called for the cages but Farrington, but on the next trip at New Orleans, a clerk of Marsh & Ranlett came on board with the receipt and inquired where the cages were, or what had been done with them, and was told that they had been delivered to Farrington.

The deposition of P. Atchison was read, who testified that he was captain of the boat--that the cages were shipped on board by Farrington as his own property, he said they were his and were delivered to him at New Orleans-- he, Farrington, made the contract for their transportation, took charge of the cages down to New Orleans. On the boat's return to St. Louis, DeBaun told him he had a claim on the cages, which was the first claim made for the cages after their delivery. On cross-examination he testified that he did not know that the receipt of the boat was out for the cages, until his return to St Louis, when DeBaun informed him, telling him that he got himself into a scrape, as he had the receipt for the cages. DeBaun said that Davison was owing him about $250, for which he was to have the proceeds of the cages.

The deposition of Parker was read who testified that in September, 1848, Farrington brought Davison to the shop of Davis and introduced him as his partner and showed him a lot of bird-cages belonging to Davis as the ones intended for New Orleans--afterwards at Memphis he saw Farrington who told him that he had the cages on the Amaranth and asked him to go and look at them. Deponent helped make the cages and their value was about $3 apiece.

Merrill Davis being then sworn, testified that he made the cages, had been paid for them only $45; that they cost $195 50--that Farrington boarded with him and promised to take some cages to New Orleans for him--that Davison was his partner--that he and Davison and Farrington together, took the cages on board the Amaranth--that they were to sell them in New Orleans as his agents for commissions--that sometime after they were shipped, he met Davison in St. Louis, who told him the cages had been sold well, but that he had not yet received returns but probably would next day, and then would call upon him, and told him that probably some of the boat's crew would call upon him, and advised him to be cautious what answers he gave them. A few days after he asked Davison if the cages were insured, who said they were in the Columbia office, in DeBaun's name, in his open policy--he called at that office and was told that DeBaun had no insurance there--Davison said a bill of lading was taken and was at DeBaun's office, and they went there together but DeBaun had gone to Alton by reason of some sickness or death, but his clerk showed him a bill of lading, not signed, and told him that was worth nothing--Davison then said he had the boat's receipt. DeBaun's clerk said the cages were insured in the St. Louis office, November 17, 1848. Davison came to his shop and told him that Farrington had run off and that he wanted to settle with him for the cages, and offered his note for fifty dollars at thirty days--that he took it and gave him the bill for the cages receipted Davison promised that if he ever got the money for the cages he would pay him all. In March next Davison told him he had a lot of liquors, and as soon as he sold them he would pay him--he did not do it, and learning that the liquors were at Joel Small's he went there with an officer to levy upon them and there learned that the only interest Davison had in the liquors was what they would bring over and above certain fixed prices, which they were not worth. In March, Davison told him if he would go to to DeBaun's, DeBaun would cash said note--he went there and DeBaun wrote what he then supposed and now supposes was a check, which he took to Gray & Co., bankers, who said they were in the habit of cashing such paper sometimes, but then declined because short of funds--he went back to DeBaun and told him the result. DeBaun replied, Davison is gone, what shall be done about it? and told witness that he would give him $45 for it, which he took. In February, Cunningham called upon him and asked him if he was the man who had a lot of cages shipped upon the Amaranth? He replied that he was--was then asked if he had been paid replied not--also if shipped in his name? replied no, but in that of DeBaun, and then gave a sketch of the affair. In the afternoon DeBaun came to his shop, which was the first time he had ever seen DeBaun--DeBaun asked him if his name was Davis? replied yes--was then asked if he sent a bill of cages--replied that he sent a memorandum of the prices, marked 1, 2, 3, and so on; was then asked if he had ever made out any bill of the cages? replied he had. DeBaun then said that he would like to see his hand-writing, saying that he had a bill of them and did not know but that it was a fraudulent one--he replied that he presumed it was not fraudulent, for he had made out one and receipted it--was then asked if he had been paid? replied no. In September, 1849, in the courthouse, just before the case was called for trial, DeBaun said to him that we did not want Farrington's name known in the case; he replied he believed he knew what was the obligation of an oath, that if he was asked in court he should tell about the...