Rea v. Eclipse

• Decision Date: 04 October 1886
• Citation: 4 Dak. 218,30 N.W. 159
• Parties: The Eclipse. Rea and others v. The Eclipse. (Braithwaite, Claimant. Leighton and another, Intervenors.)
• Court: South Dakota Supreme Court

30 N.W. 159

4 Dak. 218

The Eclipse. Rea and others

v.The Eclipse. (Braithwaite, Claimant. Leighton and another, Intervenors.)

Supreme Court of the Territory of Dakota.

October 4, 1886.

On appeal from district court, Third judicial district. In admiralty.John E. Carland and Williams & Davidson, for appellants, Rea and others. Flannery & Cooke, for claimant, Braithwaite.

W. E. CHURCH, J.

This was a proceeding in admiralty instituted by the libelants for the possession of the steam-boat Eclipse. The libelants are Robinson, Rea & Co., Kay, McKnight & Co., A. W. Cadman & Co., and Joseph McC. Biggert, who in their libel, filed April 7, 1881, allege- First, that they are the majority of the owners of the boat, and, being such owners, on or about March 10, 1881, appointed one William Braithwaite master of said vessel to navigate and sail her for them at agreed wages, and said Braithwaite continued to be such master until April 4, 1881, when the libelants removed him as master, and appointed another in his place; second, that when the new master, so appointed by libelants, went on board said vessel, by their orders, to enter upon his duties, Braithwaite refused to give up the possession of the papers. Process was prayed against the vessel and Braithwaite, and was issued accordingly on the same day, returnable on the first Tuesday of June then next.

On June 4th the marshal returned that he had attached the boat under said process on the day it was issued, (April 7, 1881,) and that on the same day one Joseph Leighton put in a claim to the boat, and with the consent of libelants, and upon Leighton executing a stipulation for value in $12,000, that being the amount agreed upon between him and libelants, the marshal had delivered the boat to Leighton. On April 15, 1881, Braithwaite intervened as a claimant of the boat, as “trustee, one of the owners, and master,” averring that he was managing owner and master, and entitled to the possession and command. He also filed sundry exceptions to the libel, two of which were to the effect that the libel did not show to what extent or how the libelants were interested, nor who the other owners were, nor what their interests.

The libel was thereupon amended by adding, among other things, the statementthat Robinson, Rea & Co. own a $2,500 interest in said boat, Kay, McKnight & Co. a $450 interest therein, Joseph McC. Biggert a $2,500 interest therein, and A. W. Cadman & Co. a $100 interest therein; “and that the only other person having an interest in said steam-boat is William Braithwaite, who owns a $2,500 interest in said steam-boat.” Possibly it was intended by this amendment to say that the interests of the respective parties were in the proportions indicated by the amounts stated; but, in any event, the statement was by no means an accurate one, as will appear further on. On May 7, 1881, Braithwaite filed further exceptions and answer, and on May 25, 1881, Leighton & Jordon filed their claim in intervention, claiming as purchasers under a bill of sale bearing date March 31, 1881.

Interrogatories were propounded and answered on both sides, and considerable evidence taken, and on September 4, 1884, the cause having been heard upon the pleadings and proofs, the district court made its findings, and entered a decree dismissing the libel, and also the intervention of Leighton & Jordan, and ordering the possession of the boat to be restored to Braithwaite. From that decree this appeal is taken.

The facts in the case seem to be as follows: On February 4, 1880, the steam-boat Eclipse being hopelessly involved in debt, and about to be sold on executions against her, the libelants Robinson, Rea & Co., Kay, McKnight & Co., and A. W. Cadman & Co., being creditors of said boat, for the purpose of protecting themselves from loss, effected an arrangement with William Braithwaite, a steam-boat captain, and one John D. Biggert, neither of whom appears to have had any previous interest in the matter, to purchase the boat at the marshal's sale, put it in working order, and run it. This agreement was reduced to writing, and was in substance as follows: Braithwaite and Biggert were described as parties of the first part, and the creditors named as parties of the second part. After reciting the financial condition of the boat, and the desire of the parties to prevent a sacrifice, it was agreed that the parties should contribute to a general fund the following amounts: Braithwaite, Biggert, and Robinson, Rea & Co., $2,500 each; Kay, McKnight & Co., $450; and A. W. Cadman & Oo., $100,-making $8,050 in all. Probably by some inadvertence the aggregate amount is thereafter twice referred to as $10,000. These several amounts were to be paid in cash to the parties of the first part in case the steam-boat should be purchased by them as provided, or so much thereof as might be necessary to be used for that purpose was to be paid in cash, and the remainder to be used as working capital. The remainder of the agreement I give in its own language, viz.:

“ Second. That, in addition to said cash fund, the several parties are to contribute, as capital, the amount of their respective claims against said steamboat, and, in case said steam-boat is bought in by the parties hereto, their claims are not to be paid at once, but be receipted for by them, and afterwards paid as hereinafter provided for.

Third. When the said steam-boat is put up at marshal's sale, the same is to be bidden for by the parties of the first part to such an amount as a majority in interest in said amount of $10,000 may determine, and to be put in the name of W. Braithwaite and John D. Biggert as trustees, and to be held by them thereafter as such trustees, for the following uses and purposes: (1) That the same be managed and run in the interest of all the parties hereto, said W. Braithwaite to act as captain, and John D. Biggert as financial agent; the said Braithwaite to receive a salary of one hundred and fifty dollars per month, and said John D. Biggert to receive a salary of one hundred dollars per month, during the time she is run in the interest of the parties hereto.

Fourth. Out of the earnings of said steam-boat the respective claims of said parties of the second part are first to be paid; and (2) the full amount of their respective portions of said $10,000 advancement is to be paid, and, when said parties of the second part are fully paid, then this trust shall cease and determine, and the said steam-boat shall remain wholly to the use and benefit of the said W. Braithwaite and John D. Biggert, their executors, administrators, and assigns.

Signed and sealed and delivered this fourth day of February, A. D. 1880, with our hands and seals.”

The amount due to the parties of the second part as creditors, respectively, is not stated in the contract, and nowhere appears in the record.

After the execution of this instrument, Joseph McC. Biggert was substituted for John D. as a party thereto, and, as Braithwaite insists, without his consent and against his protest.

In pursuance of this contract, Braithwaite came up from Pittsburgh, Pennsylvania, to Bismarck, Dakota, to attend the sale, which took place about February 18, 1880, and then and there bid in the boat for $8,525, of which $8,050 was met by the payment by the parties to the contract of the amounts of their respective contributions above stated, and the balance was raised on the credit of the boat, and paid out of the subsequent earnings. Bill of sale was made by the marshal to Braithwaite and Joseph McC. Biggert, trustees. Braithwaite took possession as master, under the agreement, and remained in possession until removed by the marshal, as before stated. And it may be here remarked that the removal of Braithwaite, and delivery of possession to the intervenors, Leighton & Jordan, was without any order of the court whatever.

Among other findings of the court is one, the tenth, “that said steamer was run by claimant during the navigation season of 1880 under said written agreement, and earned eight thousand dollars, which went into the hands of the financial agent under said agreement, and the same has not been apportioned or distributed.” In the following winter the vessel was laid up in the ice in the Missouri river, a little below Fort Benton, Montana. The ice appears to have been quite heavy; and the parties in interest, fearing she might be injured or destroyed in the spring break-up, met February 2, 1881, and appointed a committee to effect a sale. This appointment was in writing, as follows:

“Pittsburgh, Penn., February 2, 1881.

“We, the undersigned, creditors and trustees of the steamer Eclipse, hereby appoint William Rea, John D. Biggert, and J. C. Kay our committee to effect sale of said steamer, granting unto them, or a majority of them, power to accept any offer which they may receive for the purchase of the steamer; it being expressly understood that they shall not accept any offer of less than eleven thousand four hundred dollars cash, or equivalent in approved paper.” (Signed by all the parties in interest, including both John D. and Joseph McC. Biggert.)

It would seem from the testimony that the minimum of $11,400 was fixed because that, with the undistributed earnings, would give each one of the parties in interest the amount of his investment,-“would let them all out.”

Braithwaite testifies, and seems not to be contradicted therein, that, after this paper was signed, he remained in Pittsburgh until February 24, 1881, during which time, though they tried to sell, no sale was effected, and that “we had a meeting about February 23d. It was unanimously agreed by all parties interested that we could not sell the boat as she lay in the ice, and that I should proceed to the boat, and take a crew with me, and try and save the boat, and bring her to Bismarck.” Braithwaite accordingly started on this mission, but was detained by various causes,-hunting up a...