Steamboat Charlotte v. Hammond

• Decision Date: 31 January 1845
• Citation: 9 Mo. 59
• Parties: STEAMBOAT CHARLOTTE v. JOHN R. HAMMOND.
• Court: Missouri Supreme Court

9 Mo. 59

STEAMBOAT CHARLOTTE

v.JOHN R. HAMMOND.

Supreme Court of Missouri.

January Term, 1845.

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.

SCOTT, J.

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: “If the jury find that the receipt at the foot of the account, given in evidence by the defendant was executed, and delivered by the plaintiff to the owner of the steamboat Charlotte, then said receipt is evidence that said notes were given and received in payment of said account. If the jury find that said receipt was executed and delivered by the plaintiff to the owner of the boat, and that said boat was afterwards sold and delivered in good faith by the sole owner, to a person who at the time the account so receipted accrued, was not an owner, then the plaintiff is not entitled to recover for any item in said account, unless it is proved to the satisfaction of the jury that said notes were not accepted by the plaintiff in payment, and that the purchaser at the time of the purchase by him, had no notice of that fact. If the jury find from the evidence that after the execution of the receipt of the plaintiff, given in evidence, the then sole owner of the steamboat Charlotte sold and conveyed said boat Charlotte to another, before the commencement of this suit, then that receipt is conclusive evidence that said notes were given and received in payment of the account at the foot of which it is written, and said receipt is not affected by any understanding between the parties thereto, unless the purchaser at the time of the sale had notice of such understanding. If the jury believe from the evidence, that whilst the plaintiff owned and possessed the note accompanying his complaint, and before its maturity, Herman L. Hoffman, as the owner of Charlotte, sold her to a third person, who at the time of his purchase had no notice of the plaintiff's claim of lien, the plaintiff cannot recover in this suit any part of his said demand. covered by said note, whether it was intended by the parties as payment or in liquidation only of such account.” 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...