Voorhees, Miller & Co. v. Steamboat "Eureka"

14 Mo. 56

Opinion

Ryland, J.,

delivered the opinion of the court.

From the above statement it will be seen that the principal grounds of complaint consist in the acts of the court below in refusing the first instruction set forth above on the part of the defendant below, the appellant here; and in giving the second instruction set forth above on its own motion.

The demand of the plaintiffs below was fully proved, as appears by the evidence preserved in their bill of exceptions.

The articles were got by the steward, mate and engineer of the boat; they were such as were commonly used by these officers in their respective services on boats. The captain was frequently in the store ol the appellees when the mate, engineer and steward were engaged in getting the articles; and he did not object to their getting the articles. The plaintiffs below were engaged in'furnishing boat stores — most of the articles of the account were got by the steward. The articles were delivered to the boat on the wharf at St. Louis.

When the plaintiffs closed their case, the defendant asked the above instruction, (marked A,).in the statement.

The court refused to give it, and this is one of the errors relied on by the appellants for reversal of the judgment below.

The account containing a list of the articles furnished the boat is' ■annexed to the petition; the petition alleges that the demand against the boat accrued on account of James T. Sargent and Samuel Hart, masters of said boat.

The defendant contends that as the articles were furnished to the boat, on the immediate application of the subordinate officers of the boat, there was a failure to prove the articles were furnished to the’boat.'on account of the masters as alleged, and that therefore the instruction should have been given. But I do not agree with the defendant below in this rigid construction of the petition or the statute; those articles might well have been furnished the boat, although chosen and selected and laid aside by the steward, or by the-mate, or by the engineer, on account of the masters of said boat;, and whether the articles were so furnished on account of the masters, was. a matter for the jury-to determine; and this they could find from such circumstances as the presence of the master, during the. purchase; his supposed consent to the purchase — his knowledge of such purchase and his failure to dissent or countermand the same. The court therefore committed no error in refusing to give the instruction. When the defendant called the witness, Voorhees to the stand, it becomes plain at once that such an instruction would have been greatly injurious to the rights of the plaintiff. For this witness proves beyond doubt, that the account was furnished to the Eureka by request of the master, James T. Sargent, although the mate, steward and engineer got the articles. It is true, when the-plaintiffs closed their case, there was no positive evidence of this fact, but it was a fact that might, from the circumstances in proof, be fairly inferred by an intelligent jury.

The instruction which the court gave put the facts of the case plainly before the jury, and I find no fault with it. The defendant below complains that this instruction was wrong, because there was no proof of any custom of trade allowing articles got on order of steward, mate or engineer, by the knowledge of the master, to be charged as goods purchased on account of the master.

There was no necessity to say anything about custom of trade in this case. The testimony of Voorhees, who was produced as a witness by the defendant, clearly shews that these articles were furnished at the request of the master, Sargent; and the court might have given a more pointed and direct instruction; but then I am unable to see any injurious effect the instruction given could have had against the defendant below. Upon the whole record, I have no doubt that justice has been done the defendant below — and the only cause of complaint made before us partakes too strongly of rigid technicality to require anything more at our hands than an affirmance of the judgment below.