Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co.

Ninth Circuit

Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co.

251 F. 266, 163 C.C.A. 422, 1918 U.S. App. LEXIS 1702

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 13, 1918

DocketNo. 3070

StatusPublished

This text of 251 F. 266 (Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Shipowners' & Merchants' Tugboat Co. v. Hammond Lumber Co., 251 F. 266, 163 C.C.A. 422, 1918 U.S. App. LEXIS 1702 (9th Cir. 1918).

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Opinion

HUNT, Circuit Judge

(after stating the facts as above). It appears that tire appraisement made hy the commissioner and approved by the court in the proceedings in the United States court in California pending between appellant and appellee as parties thereto made appellant’s interest in the tugs $115,000. But it is said that afterwards in'the state court appellee amended by increasing its claim against the appellant for the value of the raft from $71,249.90 to $110,983.13, and that subsequently in the brief filed by appellee the demand was again increased from $110,983.13 to $111,153.22 and interest thereon at the rate of 6 per cent, per annum from September 9, 1911, the date of the loss, and therefore that appellee’s claim was made to exceed $140,-000, or $111,153.22, with interest at 6 per cent, from September 9, 1911, to July 21, 1916, the date of filing the petition.

It is clear that the Lumber Company made no claim in excess of $110,983.13. It never demanded more than that sum in its pleadings; and the suggestion, which was made in the brief filed by counsel in its behalf in the state court, that to the sum set forth as the value of the raft interest from September 9, 1911, “should” be added, was properly treated by the District Judge as not a formal demand, but rather as an argumentative way of emphasizing appellee’s damages in the premises. • The affidavit of those who are connected with the Lumber Company explicitly disavows any claim or intention ever to have claimed recovery against this appellant in excess of $110,983.13, »and declares that the claim has always been limited, and was meant to be limited, to such sum and no .other. In the face of so plain a disclaimer the Lumber Company must be held to have waived any possible claims it may have ever had to interest. There was, therefore, ample showing for overruling the appellant’s contention that the appellee made a claim in the state court in excess of the value of the appellant’s interest in the vessels at the close of their respective voyages when the raft was lost. Nothing in Rutenic v. Hamaker, 40 Or. 444, 67 Pac. 196, cited by appellant, conflicts with the presumption that the state court will not award interest in a case where it is not demanded. Sargent v. American Bank & Trust Co., 80 Or. 16, 156 Pac. 431; Hayden v. Astoria, 84 Or. 205, 164 Pac. 729.

The decree appealed from is affirmed.

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HUNT, Circuit Judge

(after stating the facts as above). It appears that tire appraisement made hy the commissioner and approved by the court in the proceedings in the United States court in California pending between appellant and appellee as parties thereto made appellant’s interest in the tugs $115,000. But it is said that afterwards in'the state court appellee amended by increasing its claim against the appellant for the value of the raft from $71,249.90 to $110,983.13, and that subsequently in the brief filed by appellee the demand was again increased from $110,983.13 to $111,153.22 and interest thereon at the rate of 6 per cent, per annum from September 9, 1911, the date of the loss, and therefore that appellee’s claim was made to exceed $140,-000, or $111,153.22, with interest at 6 per cent, from September 9, 1911, to July 21, 1916, the date of filing the petition.

It is clear that the Lumber Company made no claim in excess of $110,983.13. It never demanded more than that sum in its pleadings; and the suggestion, which was made in the brief filed by counsel in its behalf in the state court, that to the sum set forth as the value of the raft interest from September 9, 1911, “should” be added, was properly treated by the District Judge as not a formal demand, but rather as an argumentative way of emphasizing appellee’s damages in the premises. • The affidavit of those who are connected with the Lumber Company explicitly disavows any claim or intention ever to have claimed recovery against this appellant in excess of $110,983.13, »and declares that the claim has always been limited, and was meant to be limited, to such sum and no .other. In the face of so plain a disclaimer the Lumber Company must be held to have waived any possible claims it may have ever had to interest. There was, therefore, ample showing for overruling the appellant’s contention that the appellee made a claim in the state court in excess of the value of the appellant’s interest in the vessels at the close of their respective voyages when the raft was lost. Nothing in Rutenic v. Hamaker, 40 Or. 444, 67 Pac. 196, cited by appellant, conflicts with the presumption that the state court will not award interest in a case where it is not demanded. Sargent v. American Bank & Trust Co., 80 Or. 16, 156 Pac. 431; Hayden v. Astoria, 84 Or. 205, 164 Pac. 729.

The decree appealed from is affirmed.

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251 F. 266, 163 C.C.A. 422, 1918 U.S. App. LEXIS 1702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shipowners-merchants-tugboat-co-v-hammond-lumber-co-ca9-1918.

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