Phelps v. Steamboat Eureka
Decision Date | 31 March 1851 |
Citation | 14 Mo. 532 |
Parties | PHELPS v. STEAMBOAT EUREKA. |
Court | Missouri Supreme Court |
APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.
This was a demand, presented by the appellant, to the St. Louis Court of Common Pleas, for allowance against the appellee. The evidence went to show that the appellant, in May, 1849, loaned to the appellee, one thousand dollars, through James T. Sargent, then part owner, that the money was borrowed to pay for repairs and other expenses on said boat, that after Sargent obtained the said loan, he paid about eight hundred and fifty dollars into the clerk's office, which money was used by the boat that before the expiration of the six months, the boat had the money in her clerk's desk to pay to the appellant, that at that time the appellant called for his money, that the appellee paid him one hundred and fifty dollars, and that James T. Sargent the then part owner of her, and master, stated to the appellant that the boat wanted money to defray her expenses in navigating the waters of this State, and asked him to let the boat have the eight hundred and fifty dollars (being the amount due him), for six months longer, and the appellant agreed to it, that Sargent & Hart had admitted a release by appellant to the boat, and the indebtedness by the boat and appellee to the appellant. Upon this state of facts, the appellant asked the court sitting as a jury to give instruction to the effect, that if the appellant loaned in May, 1849, to Sargent, & Hart, the owners, the sum of $1,000, with the understanding that the same was for the sole use of the appellee to defray expenses in navigating the waters of this State, and that at the expiration of the six months the appellant loaned eight hundred and fifty dollars to said Sargent & Hart, for the purpose of defraying the expenses necessary to navigate the said boat, that in such case the appellant is entitled to recover, as also another instruction was asked by appellant that the admissions of the owner were competent testimony. The court overruled these instructions, which was at the time excepted to by appellant. The court gave for appellee the following instructions, in effect: That the admissions of the owners are not evidence in the case in favor of appellant so as to create a lien and defeat other creditors, and, therefore, are to be excluded, so for as other creditors' rights are thereby affected; but that they are competent to share a claim against the owners to any surplus which may be coming to them after all claims and liens are paid; and also, that to say that the money is still wanted, and to stipulate for the further and longer use of the same, is no ulans so as to create a lien. To the giving of these instructions, appellant at the time excepted. Whereupon, the court, sitting as a jury, rejected said allowance. The appellant after and within four days from said rejection, moved said court to set aside said rejection on the grounds of the improper exclusion of the appellant's instruction, and the giving of improper instructions in lieu thereof, and that the finding was against the evidence; the court below overruled said motion and for the aforesaid reasons. This case is now brought into this honorable court by appeal.
HART, for Appellant.
The court erred in refusing the instruction asked by him: I. 1st. Because the statements made by Sargent & Hart, the owners of the steamboat Eureka, is good and competent evidence before the court sitting as a jury, and ought not to have been excluded. 2nd. Because if the owners of the steamboat, borrowed in November, 1849, from the appellant eight hundred and fifty dollars, to enable him to pay her hands and obtain supplies, this is sufficient evidence of a loaning to the boat, and not to Sargent & Hart, and six months not having elapsed when the claim was presented to the court below for allowance, the same ought to have been allowed for eight hundred and fifty dollars. 3rd. The appellant contends that the court committed error in giving instructions for appellee or on its own motion.
II. 1st. Because there was evidence that the money loaned by the appellant was used in defraying the expenses of the steamboat. 2nd. Because there was evidence that in November the boat had the $1,000 in hand for the appellant, and that when the appellant called for the same, the owners effected a loan of $850 to pay the necessary expenses of the boat to enable her to navigate. 3rd. Because the fact that Phelps did not take the money which was in the clerk's drawer for him, and then handing back $850, does not, from the evidence, change the conclusion that the said sum was loaned to the steamboat in November, 1849. In other words, that the evidence went to show that the loan made in May, of $1,000, was settled in November, and the appellant agreed to loan the boat the $850 for six months.
HALL, for Appellees.
I. The money when first loaned to the owners,...
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