Madison Cnty. Coal Co. v. Steamboat Colona

• Decision Date: 31 October 1865
• Citation: 36 Mo. 446
• Parties: THE MADISON COUNTY COAL COMPANY, Plaintiff in Error, v. STEAMBOAT COLONA, Defendant in Error.
• Court: Missouri Supreme Court

36 Mo. 446

THE MADISON COUNTY COAL COMPANY, Plaintiff in Error,

v.STEAMBOAT COLONA, Defendant in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to St. Louis Circuit Court.

Knight, for plaintiff in error.

I. The item for towing said boat is clearly within the second clause of the first section of the act. This clause gives a lien for “labor done” by “tradesmen and others in building, repairing, getting out, furnishing, or equipping thereof.” But if there be any doubt of its being embraced in this clause, there certainly can be none that it is so embraced in the fourth clause of said section. This fourth clause gives a lien “for all demands accruing from the non-performance of any contract touching the transportation of persons or property.” This contract was with the master and owner for towing the boat. The boat was to pay plaintiff ten dollars for towing said boat from the head of Bloody Island to the wharf at St. Louis. (Smith v. St. bt. Raritan, 10 Mo. 527; Phegley v. St. bt. David Tatum, 33 Mo. 461; Farrington v. Meek, 30 Mo. 378.) Towage is allowed in admiralty on the same gound of salvage or wharfage. (Emerson v. Bark Pandora, Newb. 434; 1 Conklin's Adm'y, p. 28. note.)

II. The account sued on was a running account. (Phelps v. St. bt. Eureka, 14 Mo. 532.) This contract to “let the account run, and for more coal,” was beneficial to the boat; and the subsequent delivery of the coal would relate back to the time of the contract. The general doctrine of relation is, that when two or more acts concur to create an estate, the subsequent acts relate back to the original act. (18 Vin. Abr., tit. Relation, § 8, p. 290 et seq.; 1 Johns. Cas., 81; Jackson v. Ramsay, 3 Cow. 75.)

The difference between a running account and one that does not run is, that in the latter case each item (or those contracted for and delivered at one time) is a separate cause of action by itself. The minds of the parties are presumed only to have concurred as to the single transaction, and the same becomes an account stated as between the parties. In such case, the account bears interest. (2 Sto. Cont. § 1026; Carson et al. v. St. bt. Hillman, 16 Mo. 256; Taylor v. St. bt. Rob't Campbell, 20 Mo. 254; Clark v. Humphreys, 25 Mo. 99; Pratt v. Reed, 19 How., S. C. 359: Newb. Adm. 111; 12 Mo. 477.)

Rankin, for defendant in error.

I. The demand accrued and the suit was brought within the county of St. Louis. Clearly the cause of action on the first two items was barred by the limitation of the statute. The case of Carson & Brooks v. St. bt. Dan. Hillman, 16 Mo. 256, is not applicable here, because the account (or demand sued on) in this case is not an open running account; from the face of the account, it would seem that separate contracts were made in reference to each furnishing, because different prices were charged for the several items. (St. bt. Mary Blane v. Beehler, 12 Mo. 477.)

II. In regard to the claim for towing, it is sufficient to say that such demands are not specified nor enumerated in the statute, and it cannot be made out a constructive supply.

HOLMES, Judge, delivered the opinion of the court.

This was a suit under the “Act concerning boats and vessels” (R. C 1855, p. 303. § 1), upon the following demand:

Steamboat Colona Dr. to the Madison Coal Company.

1860.

Feb. 21.

To 300 bush. coal, at 10 cts.

$30 00

1860.

Mar. 16.

To 300 bush. coal, at 10 cts.

30 00

1860.

Nov. 2.

To towing said boat and taking in lines

10 00

1860.

Nov. 6.

To 300 bush. coal, at 8 1-8 cts.

24 22

$94 22

The answer admitted the last item, but denied that there was any lien on the boat for the other items; and upon the trial, the court instructing the jury to that effect, judgment was rendered for the plaintiff for the last item only. The statute provides that the suit shall be commenced within six months “after the true date of the last item of the account upon which the action is founded” ( ibid. § 42); and it has been held by the court in several cases, that the time is to be reckoned from the date of the last item. (Carson v. St. bt. Hillman, 16 Mo. 256.) It is said that there was an interval of more than six months between the second and third items, and that the lien for the first two items was lost by the lapse of time. The evidence shows that the account was kept open at the instance of the master of the vessel, who expected that he would need more coal, and preferred to settle the whole bill at once. It appears to have been understood by both parties to be an open running account. The whole constituted but one demand, and the time should have been counted from the date of the last item. We think it came within the intent of the act and the decisions of this court.

As to the item for “towing said boat and taking in lines,” there appears to be more difficulty. It is clear that it cannot be brought within the first, third or fourth clauses of the first section of the act. It is not for wages of a person employed as hand on board of the boat, nor is it any contract “touching the transportation of persons or property” on the boat. If it can be a lien at all, it must come under the second clause of the section; and the only words which can be applied to it by any rational construction are these--” or on account of labor done by mechanics, tradesmen, or others, in the building, repairing, getting out, furnishing, or equipping thereof.” It is not labor done in building, repairing, furnishing, or equipping the boat; a liberal construction has been given to the act in respect to what constitutes the equipment of a boat, and it has been held that a barge or a reel-boat used to assist in the navigation of the vessel, in certain waters, is a part of her equipment, as a thing indispensable in navigating low stages of the river, and...