Steamboat Charlotte v. Hammond
Decision Date | 31 January 1845 |
Citation | 9 Mo. 59 |
Parties | STEAMBOAT CHARLOTTE v. JOHN R. HAMMOND. |
Court | Missouri Supreme Court |
HAMILTON, GEYER and DAYTON, for Plaintiff.
SPALDING and TIFFANY, for Defendant. 1. The giving the notes by the owner of the boat did not discharge the lien, so as to prevent the prosecution of the claim, under the act of Assembly, against the boat by name. 6 Mo. R. 552, 555. 2. The giving of a note is not an extinguishment of the original cause of action, unless there was an express agreement that it was given and received in extinguishment, and that the plaintiff took upon himself the risk of the payment of the note. 10 Peters' U. S. R. 567; 6 Cranch R. 253; 4 Mason's N. Y. R. 142; 16 Johns. R. 277; 5 Johns. R. 68; 7 Johns. R. 310; 17 Johns. R. 340; 8 Johns. R. 389; 9 Johns. R. 310; 8 Cowen, 77, 472; 9 Cowen, 23; 7 Wend. 424; 3 Wend. 66; 5 Wend. 85; 2 Vermont R. 290; 4 Vermont R. 555; 2 Gill & Johns. Md. R. 493; 4 ibid. 305; 3 Har. & Johns. Md. R. 193; 1 McCord's S. C. R. 499; 3 Serg. & Rawle, 223; Chitty on Contracts, 5th Am. ed., 767, and cases cited; also, Bailey on Bills, and cases cited. In Chitty it is stated that the civil law and the Scotch law are the same as above. 3. The language of the receipt is not sufficient evidence that the note was taken in extinguishment of the original cause of action. 2 Gill & Johns. 493, Glen v. Smith; 1 Cowen, 290, Muldon v. Whitney; 6 Term R. 52, Puckford v. Maxwell; 9 Johns. R. 309, Johnson v. Weed; 8 Johns. R. 389, Putnam v. Lewis, Adm'r; 5 Johns. R. 68, Toby v. Barber; 2 Johns. Cases, 438, Murray v. Governeur; 7 Har. & Johns. 91. These cases show that when receipts are given in full of the debt, &c., on the reception of notes, the debt is not held to be extinguished without further proof. 4. By analogy to other liens it will be seen that the lien in the present case is not discharged, as: First, in case of a note of hand given on sale of land, the lien for the purchase-money is not destroyed. 4 Mo. R. 253; 6 Mo. R. 605; 4 Kent's Com. 153; 1 Mason, 213; 5 Hammond, 35; 1 Schooler & Lefroy, 132; 2 Vesey & Beaume, 306; 3 Bibb; 1 Johns. Ch. R. 308. Second, the lien of seamen for wages is not discharged by taking a draft--see Ware's Me. R., case of the Eastern Star; nor by taking a bill of exchange--see 3 Haggard's Adm. R. 238, and Curtis' Rights of Seamen, 319. Third, the statutory lien in the case of attachment, in Missouri, is not released by giving bond, &c. 7 Mo. R. 411.
This was a proceeding instituted by the defendant in error, against the plaintiff in error, under the statute providing for the collection of demands against Boats and Vessels. The plaintiff in error was indebted to the defendant in error, a mechanic, for materials furnished and labor performed on her The plaintiff's statement of the cause of action, contains an account of the services rendered, at the foot of which is a receipt in these words: “Received payment by note 4 months, dated May 3rd.” The note thus given by the owner of the boat accompanies the statement of the cause of action, and forms a part of it. After the execution of the note, and before the commencement of the suit, the owner of the boat sold her to Richard Ackerman, who had no notice of the incumbrance of the defendant in error. The plaintiff in error asked the court below the following instructions: These instructions were refused, and the court instructed the jury, that the receipt given in evidence by the defendant in this case, does not discharge the lien of the debt on said boat if it previously existed. Exceptions were taken to the instruction. A verdict was found for the defendant in error, and after judgment the case was brought to this court. The instructions refused and that given, indicate the points involved in this case.
In respect to personal property, a lien at common law, is defined to be, “the right which one person in certain cases possesses of detaining property placed in his possession, belonging to another, until some demand which the former has, be satisfied.” East, 235. These liens exist only while the party entitled to them, continues in possession of the property on which they have attached, and if the possession is relinquished after the lien attaches, the lien is gone. By parting with the possession, the creditor shows that he trusts to the personal credit of the debtor, and if liens were allowed to remain upon goods, after they had been sold, the consequence would be highly injurious to trade, as no person could know where he purchased with safety. Jones v. Pearle, Strange, 556. It has been held that the circumstance of contracting for a particular sum instead of relying on the contract for a reasonable reward is of itself a waiver of the lien. This, however, is now denied to be law, and the opinion seems to prevail that nothing but a contract inconsistent with the idea of the existence of a lien is a waiver of it. Metcalf's...
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