Van Valkenburg v. Rogers

• Decision Date: 18 April 1869
• Court: Michigan Supreme Court
• Parties: Daniel Van Valkenburg et al. v. Elizabeth Rogers, administratrix

18 Mich. 180

Daniel Van Valkenburg et al. v. Elizabeth Rogers, administratrix

Supreme Court of Michigan

April 18, 1869

Heard April 10, 1869 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Bay circuit.

This was an action of trover brought to recover damages for an alleged conversion of special property in the steam tag Union.

Upon the trial, the plaintiff offered in evidence certain letters and telegrams, of which the following are material portions:

"Bay City, February 26, 1866.

"Messrs. D. A. Van Valkenburg & Son:

"Gents--I wish to know if you would charter your tug Union for the coming season. I would fit her out well and pay for such outfit, and pay you two thousand dollars for such charter, as follows: Five hundred dollars on the first of June, 1866, five hundred dollars on the first of August, 1866, five hundred dollars on the first of October, 1866, and five hundred dollars on the first of December, 1866; and on laying her up would guarantee her clear of all claims which might accrue while under such charter. Could use her in connection with the tug Wave much better than alone, and would do your towing as reasonable as you could get it done otherwise. Please let me hear from you soon.

"Respectfully, etc., "H. B. Rogers."

"Lockport, March 7, 1866.

"Mr. H. B. Rogers:

"Dear Sir--Yours of the 26th of February was duly received and contents observed. You make us an offer for the charter of the tug Union. We would not like to charter the tug in just the manner that you state it. We will put the tug under your control, except for what little towing we have for ourselves, so that you can control the matter as you think best, at a reasonable rate, so that you can take the entire management of the matter. I think by putting them together will be a benefit to both parties. You can rely on us to do anything that is right in the matter. If you think well of the plan, please write soon, and let us hear from you what you think about it. Yours, respectfully,

"D. A. Van Valkenburg & Son."

"Bay City, March 12, 1866.

"Messrs. Van Valkenburg & Son:

"Gents--Yours of the 7th inst. is at hand. I think favorably of your plan, and will take the tug Union with the understanding that your towing is to be done at any time that you may call for it, but would like to have some definite understanding about what I am to do, or about what I am to give. If you know about what amount of logs you have to tow, please state how much I shall pay you besides doing your towing. It is high time that fitting and repairing had commenced. If I take her, painting and repairing should commence this week, and I would like to have you telegraph as soon as you get this, because nearly every other boat is ready to come out as soon as the ice clears from the river. I will do just as I agree, and as the season is far advanced, and little time left in which to make repairs, and it seems a long time to wait for an answer by mail, I think it would be best to let me hear from you by telegraph, and whatever you want done in relation to a bargain, perhaps you could have it done through Mr. Westover, after informing him what you want.

"Respectfully, "H. B. Rogers."

telegram.

"Lockport, N. Y., March 17, 1866.

"To H. B. Rogers, Esq., Bay City, Mich.:

"You can commence fitting up the tug Union.

"D. A. Van Valkenburg & Son."

It was admitted that the letters signed H. B. Rogers were written and signed by the plaintiff and received by the defendant D. A. Van Valkenburg. It was also admitted that the letters and telegram signed by D. A. Van Valkenburg & Son were written by defendant D. A. Van Valkenburg, and the letters sent by mail, and the telegram by telegraph, and received by plaintiff.

Counsel for plaintiff stated at the time of offering in evidence said letters and telegram to the court and jury, that he offered said letters and telegram for the purpose of proving a charter party or contract of hiring of the said steam tag between said Daniel A. Van Valkenburg & Son and the plaintiff.

To reading the same in evidence the counsel for the defendants objected, because, if the said letters and telegram constituted a contract or charter party, it was void, not being stamped with an internal revenue stamp, as required by the laws of the United States.

The court overruled the objection and admitted the evidence.

It afterwards appeared in evidence, on the part of plaintiff that plaintiff took possession of said steam tug Union, immediately after the receipt of the telegram above set forth, which was on the day of its date, fitted her up in running order, and expended about five hundred dollars in making repairs and fitting her up, and that he continued in such possession up to the 3d or 4th of September, 1866, and used and operated the same; that on the said 3d or 4th day of September, 1866, said defendants took possession of said steam tug Union, and used and operated the same during the remainder of the season of navigation for said year 1866, which closed in the fore part of the month of December in that year. It also appeared in evidence, on the part of the plaintiff, that the said defendant Daniel A. Van Valkenburg was owner of said tug.

After the counsel for plaintiff had rested their case, the counsel for defendants produced and read in evidence two letters, which were admitted by plaintiff's counsel to have been written by the plaintiff, and by him sent to the defendant Van Valkenburg, the material portions of which said letters are as follows:

Bay City, April 13, 1866.

"Messrs. D. A. Van Valkenburg & Son:

"Gents--I have fitted up the tug Union in A 1 order, and had I been doing it for myself exclusively, I don't know where I would have made anything better; have had her thoroughly painted, and carpenter work all that she needed, which was no small item, besides having her machinery thoroughly overhauled, and much of it made new; in short, have fitted her up for the whole season, everything as it should be, and since we have fitted her up, quite a number of blowers have made the remark that I would not have the tug very long, for they say that they intend to purchase her. Now, I want you to come here before you give any one an answer, and I want a chance to see what the tug can do for a season. These same men have said that the tug could not be made to do anything here. I wish you could have seen the way that the tug was laid up last fall.

"They did not do anything with the machinery, but left it standing just as they had last used it, and there was not a blanket or quilt on board, nor compass, nor tool, and I can not find them; nothing but the mattresses are on the boat.

"I want a chance to buy the tug, and will bind myself to do your towing this season, and two or three seasons, at as fair or low rates as the lowest offered by any other parties, I care not who--and that, too, whenever you want it done, and would be more likely to do it by having two boats, and one of light draft, than any other parties here in that business.

"Please let me hear from you without delay, and let me know when you will be here, for I want to see you. Whatever I do will be on the square.

"Respectfully, etc., "H. B. Rogers."

"East Saginaw, August 14, 1866.

"D. A. Van Valkenburg & Son:

"Gents--I met a man last evening who said he was going directly to Lockport to buy the tug Union, and I have heard of others who would like to purchase also. I have made the tug do something this season, and kept her in running order when there was a possible chance. A few days ago, I painted her thoroughly, so that she looks better than any other tug here. Last season no person would buy her at any price. Do not sell without giving me a chance. Consider my bid five hundred dollars more than any other. There will be chance enough to sell after close of navigation. Let me hear from you before doing anything, at least.

"Respectfully, etc., H. B. Rogers."

The counsel for defendant then called as a witness said defendant, Daniel A. Van Valkenburg, who testified that he was owner of the said steam tug, before and at the time of the writing of the said letters first above referred to, and at the time plaintiff took possession thereof, and that he continued to be such owner until a short time before the 3d day of September, when he sold an undivided half interest therein to said defendant Luther Westover, and one Smith, a partner with said Westover, and that all of the negotiations between said plaintiff and said defendant Daniel A. Van Valkenburg, in relation to the chartering and hiring thereof by plaintiff, or in relation to plaintiff's taking possession thereof, was by letter and telegram, and not otherwise.

The defendants further introduced evidence tending to prove that they took possession of said tug with the consent of the plaintiff; and that, on or about the 3d day of September, 1866, there was a full and complete settlement between the plaintiff and said Van Valkenburg of all matters growing out of said contract in relation to said tug.

The counsel for plaintiff introduced evidence tending to prove that no such consent was given, and no such settlement took place.

And thereupon, the counsel for said defendants requested the court to charge the jury that if said letters, dated respectively, February 26th, 1866, March 7th and March 12th, 1866, and the said telegram of March 17th, 1866, constituted a contract or charter of hiring of said tug, between said plaintiff and said Van Valkenburg, or between said plaintiff and said D. A. Van Valkenburg & Son, that then it was only a chartering or hiring at will, and...