Johnson v. Steamboat Lehigh

• Decision Date: 31 October 1850
• Court: Missouri Supreme Court
• Parties: JOHNSON & CAIN v. STEAMBOAT LEHIGH.

13 Mo. 539

JOHNSON & CAIN

v.STEAMBOAT LEHIGH.

Supreme Court of Missouri.

October Term, 1850.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

This was an action under the statute entitled an act concerning Boats and Vessels, brought to the September term, 1847, of the St. Louis Court of Common Pleas, by the plaintiff against the Steamboat Lehigh, for the malperformance of a contract of affreightment. A warrant issued and the boat was seized by the sheriff of St. Louis county, and afterwards discharged by the sheriff on bond being given under the 9th section of the above mentioned act.

The said bond was signed, sealed and delivered by Oliver Harris, Lewis F. Lacey and others as securities, and was returned by the sheriff into court with the warrant and complaint, as required by law. In the bond so executed and returned, the names of Harris and Lacey were not inserted in the body of the instrument. The names of the principal and other securities were in the body of the bond, and a space was left for the insertion of other names. The boat pleaded the general issue. Afterwards a trial was had, and on the ____ day of ____ 1849, of the September term, 1849, a judgment was rendered in favor of the plaintiff and against the boat and the principal and securities on the bond, including Harris and Lacey. Thereupon Harris and Lacy, by motion, asked the court to set aside, quash and annul the judgment as to them, on the ground that they were no parties to the suit, that the said bond was not their deed, and that the said bond was not obligatory on them, because their names were not inserted in the body of it. The court sustained their motion and set aside the judgment as to them. The action of the court in setting aside the said judgment as to Harris and Lacey, is assigned by plaintiffs for error, and is the only question now before the Supreme Court to be decided.

M. L. GRAY, for Plaintiffs. The plaintiffs in error contend that the bond was the bond of Harris and Lacey, though their names were not in the body of the instrument. They claim this to be the law both on authority and principle. Harris and Lacey do not deny that they did not sign, seal and deliver the bond as theirs and with the intent of being bound. Admitting this, they seek on the ground of a clerical omission to escape liability, which they and the parties intended to assume at the time of executing the bond. They put their names and seals to the instrument obviously for some purpose, and for what, unless to bind themselves? 2 Coke, 203. The reasoning in the case of Powell v. Thomas, 7 Mo. R. 440, will forcibly apply to this case. The bond was valid, legal and binding on Harris and Lacey, notwithstanding the omission of their names in it. I find the authorities are uniform in favor of this position. 1 Stewart's (Ala.) R. 479; 4 Hayne, 239; Brayton's R. 38; 4 McCord, 203; 2 Bailey, 199; 7 Cowen, 484; 2 Hen. & Mun. 398; 4 Munf. 380; 4 Dev. 272; 2 Dana, 463; 2 Litt. 286; 2 Coke, 261; Bac. Abr. Obligation C.; 6 Mass. R. 519. Even if the bond were defective by reason of the clerical omission, the signing, sealing and delivering was an...