Ward v. Steamboat Little Red

• Decision Date: 31 August 1842
• Citation: 7 Mo. 582
• Parties: WARD AND OTHERS, v. STEAMBOAT LITTLE RED
• Court: Missouri Supreme Court

7 Mo. 582

WARD AND OTHERS,

v.STEAMBOAT LITTLE RED

Supreme Court of Missouri.

August Term, 1842.

APPEAL FROM THE CIRCUIT COURT OF COOPER COUNTY.

TODD, for Appellants.

MILLER and LEONARD, for Appellee.

NAPTON, J.

This was an action instituted under our statute regulating Proceedings against Boats and Vessels. The statement of the plaintiffs' cause of action is couched in the ordinary form of a declaration in case. The declaration avers, that whereas, the plaintiffs were owners of a certain horse ferry boat and horse gear appurtenant thereto, and the same was used at a certain ferry kept at Rocheport, on the Missouri river, and owned by the complainants. They, the complainants, did, prior to the first of June last, to-wit, on the first of February, rent the use of the said ferry and the boat for one year, from and after the day and year last aforesaid, to a certain James F. Ward, and placed him in possession of the said ferry, and the boat and gear aforesaid, and by the agreement between the complainants and said Ward, they were to receive one-half of the proceeds made at the ferry, and the rights of ferriage owned by the complainants and leased as aforesaid to the said Ward, extended to and belonged to both banks of the river, &c. After stating the contract with Ward, in these terms, by way of showing their reversionary interest, the declaration proceeded to set forth the gist of their cause of action against the steamboat Little Red, which was the loss of their ferry boat and gear by the negligence of said steamboat, in towing their ferry boat from Nashville to Rocheport, in compliance with a contract between Ward and the said steamboat. On the trial, the contract between the owners of the ferry boat and Ward was proved to be as follows: on the 1st of February, 1839, Ward rented the ferry for one year. With the ferry, he rented a horse boat, five set of gear, and horses to work the boat. He was to find provisions for the horses, and keep the boat in good repair, and return the boat, gear, and horses at the end of the year; in consideration of which, he agreed to give the owners one-half of the nett proceeds. The court held, the contract proved varied from that described in the declaration, and for this the plaintiffs were non-suited. They moved to set the non-suit aside, but the court overruled their motion, and from this judgment they appealed to this court.

The case of Briston v. Wright, Douglass, 640, is the leading case on this subject, and is relied on to sustain the judgment of the Circuit Court. In that case, Lord Mansfield held, that in action of tort, where a contract is alleged by way of inducement merely, it must be proved as laid. One of the avowed objects designed to be effected by Lord Mansfield in this decision was, to prevent pleaders from making their declarations unnecessarily long, and thereby...