Johnson v. Strader

• Decision Date: 31 October 1833
• Citation: 3 Mo. 355
• Parties: JOHNSON v. STRADER & THOMPSON.
• Court: Missouri Supreme Court

3 Mo. 355

JOHNSON

v.STRADER & THOMPSON.

Supreme Court of Missouri.

October Term, 1833.

ERROR FROM ST. LOUIS CIRCUIT COURT.

WASH, J.

This was an action of assumpsit commenced in the St. Louis Circuit Court by the plaintiff in error against the defendants in error. The first count of the declaration alleges a special agreement between the plaintiff and the defendants for the transportation by the plaintiff for the defendants of 230,529 lbs. of lead from Galena to St. Louis, for the consideration of 37 1/2 cents per hundred pounds, to be paid on delivery. Plaintiff then avers the transportation and delivery according to contract, and the non-payment of freight. The second count is in indebitatus assumpsit, for freight and transportation of other land. The defendants pleaded non-assumpsit, and set-off for lead, goods, wares and merchandize, sold and delivered by defendants to plaintiff. The second plea was traversed, and issue joined on both. At the March term of the Circuit Court, 1831, the cause was tried by a jury, and both issues found for the plaintiff, and damages assessed at the sum of $309 64-100; the defendants afterwards moved for a new trial, which was granted to which the plaintiff excepted and filed a bill of exceptions, setting out the evidence and reasons for the new trial. By this bill of exceptions it appears that in the month of May, 1829, the defendants were the owners of 4,755 bars of lead, weighing 311,552 lbs., then lying at Galena, which they wished to have transported to St. Louis. About the same time the plaintiff, Johnson, employed one Thrasher to obtain freight for four flat boats, and to pilot them from Galena to St. Louis, which boats had been built by the plaintiff and his brother, Warren Johnson, Benjamin Hoffman and Malcolm H. Smith, in partnership. That Thrasher was employed by the plaintiff alone, who appeared to have the whole management; but who owned the boats after they were built witness did not know, but heard the plaintiff say that his brother, Warren, was a partner, but witness was employed by Whiting Johnson, and accounted to him. The boats are designated as Nos. 1, 2, 3 and 4. Thrasher contracted with Thompson, one of the defendants to transport lead for defendants. Thrasher accordingly proceeded to load the four flat boats at his own discretion, putting such part of the lead as he thought proper into each boat, and after the boats were loaded, executed to the defendants in his his own name four separate bills of lading in the usual form; by which it appears that there were shipped on board No. 1, 1,200 bars weighing 78,600 lbs.; on No. 2, 1,237 bars, weighing 81,023 lbs.; on No. 3, 1,300 bars, weighing 85,150 lbs.; and on No. 4, 1,018 bars, weighing 66,779 lbs. Thrasher, in charge of the four boats, proceeded with them to St. Louis, navigating them together and shifting lading from one to the other as occasion required; that Thrasher first landed above St. Louis, and proceeded with two boats at a time. The two first were landed safely, but in attempting to land the other two, the boat No. 2 was sunk and 412 bars of lead wholly lost. All the lead, with the exception of these 412 bars, was delivered to the defendants, who paid over to Thrasher $554 84-100, who executed a receipt therefor to the defendants, dated July 8th, 1829, by which he acknowledged to have received that sum in part of freight of four flat boats of lead from Galena to St. Louis; which sum, after deducting expenses, Thrasher paid over to Johnson, the plaintiff. Thrasher informed defendant, Thompson, that he was acting for plaintiff, Johnson. At the trial the defendants moved several instructions,...