Ward v. Steamboat “Little Red.”

• Decision Date: 31 January 1844
• Citation: 8 Mo. 358
• Parties: WARD ET AL. v. STEAMBOAT “LITTLE RED.”
• Court: Missouri Supreme Court

8 Mo. 358

WARD ET AL.

v.STEAMBOAT “LITTLE RED.”

Supreme Court of Missouri.

January Term, 1844.

ERROR TO COOPER CIRCUIT COURT.

TODD and HAYDEN, for Plaintiffs. The plaintiffs contend that the evidence offered was competent and legal, and will maintain the action: because, 1. The plaintiffs were partners, sharing in the profit and loss of the business. 7 Mo. R. 560. 2. Infants may be partners. Gow on Partnership, 1, and in same note (1), must join in an action by the firm; same, 128. 3. Contracts, gifts, and grants beneficial to the interest of infants, will be enforced, and the law implies acceptance.

LEONARD and MILLER, for Defendant. The instructions were properly given, and the court properly overruled the motion to set aside the non-suit and grant a new trial. 1. Because the suit was brought in the name of the infants, Paulina and George W. Parker, by their guardian, Rebecca Parker, and complainants offered no record or other sufficient evidence of her guardianship. See 4 Bibb 14, Floyd v. Breckenridge; same book, 391; Henderson's Administrator v. Clark, 1 Saunders, 275, note a.; 2 Saunders, 47, n.; 2 Starkie, 315, title Executors and Administrators; 2 ibid. 297, and notes; 2 Lord Raymond, 824, Marshfield v. Marsh; 3 Taunton, 113, Hunt v. Stephens; 2 Campbell, 272; 2 Cowen and Hill's Notes on Phillips' Ev., 541; 3 Monroe, 529, 531; 4 Barn. and Adol., 208. 2. That, as the plaintiffs proved the appointment of a statutory guardian, they must introduce the record of the proper court showing that appointment. See 2 Cowen and Hill's notes on Phillips' Ev., 541; 3 Monroe, 529; 4 Barn. and Adol., 208. 3. That in this case, as the plaintiffs have declared for an injury to their reversionary interest in the boat, created by a lease to Wear, that they must prove that the contract of lease was executed by Mrs. Parker, and further show that she was the guardian of the infants, Paulina and George Parker, by the record, at the time such lease was executed. See authorities on first point. That one tenant in common cannot dispose of the common property, so as to divest other tenants, without their assent. See 21 Wendell, 72; 9 Cowen, 230.

SCOTT, J.

This was a proceeding under the statute concerning Boats and Vessels, instituted by the plaintiffs against the steamboat Little Red, in which the plaintiffs suffered a non-suit. The plaintiffs in the cause are John Ward, Abraham Barnes, John Warnock, Paulina Parker and G. W. Parker. Paulina and G. W. Parker are infants, and sue by their guardian. The complaint alleges, that the plaintiffs were the owners of a ferry-boat, which they leased for one year to James F. Wear; that during the year for which said Wear rented said ferry-boat, the captain of the said steamboat Little Red contracted with said Wear, the lessee, to transport the said ferry-boat from Nashville, in Boone county, to Rocheport, in said county, for the sum of forty dollars, and that in the performance of the said undertaking, the captain of said steamboat was guilty of such negligence as caused the loss of the said ferry-boat. On the trial, a lease of the ferry-boat, executed by the three adult plaintiffs and Wear, the lessee, was given in evidence, after proof of the execution of the same. It did not appear that the lease was executed by the infant plaintiffs, or their guardian. The question presented by the record is, whether it was necessary to show a lease by the infant plaintiffs, or their guardian, in order...