Steamboat Mary Blane v. Beehler

• Decision Date: 31 October 1849
• Citation: 12 Mo. 477
• Parties: STEAMBOAT MARY BLANE v. FRANCIS BEEHLER.
• Court: Missouri Supreme Court

12 Mo. 477

STEAMBOAT MARY BLANE

v.FRANCIS BEEHLER.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

RANNELLS, for Appellant. The time given by statute is for six months and no more. It begins to run from the moment of time when the goods are delivered. 9 Mo. R. 554, Darby v. Steamboat Inda. In this case, as to the goods delivered on the 14th December, 1847, the statute began to run on that day, and the time expired prior to the day the suit was brought. No agreement of the parties for credit can extend the time, nor can any arrangement between them as to the manner and times when the goods are to be furnished, change the time of the commencment of the lien, nor prolong its duration. It is fixed by law. Same case, and Rev. Code, of 1845, title Boats and Vessels. The contract, so-called, is not entirely in the sense the appellee's counsel contends, nor can such a contract be made. Otherwise by an agreement to furnish all the goods a boat may want during a season or a year, a lien may be continued for a year and six months. As to the goods furnished on the 22nd December, 1847, the lien had expired before suit brought; the day on which the goods are furnished should be included in the computation of the time that the lien continues. The lien commences with and from the moment of the delivery of the goods; it exists continuously from that moment; suit may be brought upon it that very day. The law knows no division of a day. When a per cent. interest is to commence from the date, the day of the date is included in the computation of time. 4 Wash. C. C. R. 240; 15 Serg. & Rawle, 136. When the computation is to be made from an act done, the day on which it is performed is included; because the act is the terminus a quo the computation is to be made. 4 Wash. C. C. R. 240; Brown's Pa. R. 18; 9 Cranch, 119; 3 Term R. 623; Doug. 446; 1 Ld. Raym. 280; 3 East, 152; Rex v. Adderly, Doug. 464; 3 3 N. Hamp. R. 94; 4 N. Hamp. R. 270; 9 N. Hamp. R. 307. In construing the statute of limitations, the day on which the cause of action accrues is included. 15 Mass. R. 193; 3 Gill & Johns. 395; Iredell's Dig. N. Car. R. 2, 649. When the term month is used in the statute, it means a lunar month or 28 days, unless otherwise expressed. Wend. 512; 15 Johns. 120; 6 Term R. 226.

CROCKETT & BRIGGS, for Appellee.

1st. The contract was an entirety, and embraced all the articles in the plaintiff's line of business, which would be needed to ft out the boat, consequently under the contract, he could not have sued for the price of the articles furnished on the 14th December, until he had completed the contract by furnishing all that she wanted, which was not done until the 22nd. In other words, the delivery was not complete, nor the contract fulfilled by the plaintiff until the 22nd, and until then he had no cause of action. The contract was an entire thing, and if the delivery had run through a dozen days, some articles being delivered each day, the plaintiff could not have split up his cause of action and maintained a separate suit for each separate delivery, but must wait until all are delivered before he could sue for any.

2nd. That the delivery being complete on the 22nd December, 1847, and the suit commenced on the 23rd June, 1848, the plaintiff's demand is not barred by the statute of limitations. The rule is, that in contemplation of law a day is an indivisible point of time, and there can be no distinction, in computing time, between the act done and the day on which it is done. Wiggin v. Peters, 1 Metcalf, 127-9; Ewing v. Bailey, 4 Scam. 420; Bigelow v. Wilson, 1 Pick. 485, and numerous authorities collated; 3 U. S. Digest, 518, title Time; Littleton v. Christy's Adm'r, 11 Mo. R. 390. A limitation to commence “from and after the passage of an act,” in computing the time, the day of the passage of the act is to be excluded. King v. Moore, Jefferson, 9. An execution dated 3rd June and returnable in three months, may be served on 3rd September. Chase v. Gilman, 3 Shipley, 64. When time is to be computed from any act done, the day on which the act is done is to be excluded; for a day is to be regarded an indivisible point of time. Fairbank v. Wood, 17 Wend. 329; 1 Metcalf, 127, 129; Sanders v. Norton, 4 Monroe, 464; Gore v. Hodges, 7 Monroe, 520. In the computation of the time from an act done, the day on which the act is done will be excluded, whenever such exclusion will save a forfeiture or prevent an estoppel. Windsor v. China, 4 Greenl. 298.

3rd. The statute provides that the action shall be commenced within six months after the cause of such action shall have accrued. In the case of Darby, Adm'r, v. Steamboat Inda, 9 Mo. R. 653, it is held that the liabilities under this clause, “are such as would accrue, and upon which an action could be brought within six months after the...