Cathcart v. Foulke

RYLAMD, J. This case comes before this court by appeal from the St. Louis Court of Common Pleas. The parties below submitted the case to the determination of the Court of Common Pleas, upon an agreed statement of facts, and that court found for the defendants. The plaintiff moved for a new-trial, which being denied him, he brings the case to this ceurt. It appears that the facts embodied in this case, have in some measure been twice in this court before. Matson sued Field & Cathcart, the present plaintiff, to recover the value of a negro, which had been hired to them and which was lost. • In this suit judgment was rendered in favor of Matson by default-at September tez-zn, 1843, and which was perfected by final judgment on 4th April, 1844. Field & Cathcart moved to set aside this judgment, which motion was overruled, and they appealed to this court, where the judgment below was affirmed. See 8 Mo. R. 686. Field <& Cathcart then filed their bill in chancery in the Circuit Court of St. Louis county, praying to have this judgment of Matson against them enjoined perpetually. The Circuit Court granted the prayer of this bill, enjoined the judgment, and Matson appealed to this court, which reversed the decree of the Circuit Court and dismissed the bill. See 10 Mo. R. 100. Cathcart being compelled to pay Matson, brings this present suit against Foulke & Sons for contribution. The following is the agreed statements, viz.: Oir or about the tenth day of September, in the year 1842, the said defendants were co-partners in trade and doing business in the city of Mew York, in the State of Mew York, under the name, style and firm of Joseph Foulke & Sons. On or about the day and year last aforesaid, the said defendants were the owners of a steamboat called the Louisa, her tackle, apparel and furniture; which boat was used in navigating the waters of the Mississippi river and its tributaries. Oil or about the 20th day of September, 1842, the said defendants sold and conveyed one undivided fourth of the said steamboat, her tackle, apparel and furniture, to one, Spencer Field, who afterwards, but before the hiring of the negro man hereinafter mentioned, sold two-thirds of his said one-fourth of the said steamboat, her tackle, apparel and furniture, to Robert Cathcart, the said plaintiff. While tlie said boat, her tackle, apparel and furniture, was thus jointly owned as above mentioned by the said plaintiff, the said defendants and the said Spencer Field, the said Field was intrusted by the said joint owners with the conduct and management of the said boat in the carrying trade and lawful navigation of the said Mississippi river and its tributaries, the said Field acting as captain, and the said plaintiff as engineer on said boat. While the said plaintiff, the said defendants, and the said Spencer Field, were each joint owners as above mentioned, and while the said Field and the said plaintiff were acting, the former as captain and the latter as engineer as aforesaid, on said boat, the said Spencer Field contracted with one James Matson, trustee of Eliza P. G-rimes and her heirs, for the hire and service of a negro man called Henry, as a cook on the said boat, and the said negro man went upon the said boat and served in the capacity of cook, and that while thus employed he fell through a hole in the floor of the cook-room of said boat into the Mississippi river and was drowned. Afterwards, and at the September term, 1843, of the St. Louis Court of Common Pleas, the said James [399] Matson, trustee as aforesaid, instituted a suit at law in form of an action of trespass on tlie case in tlie said court against tlie said Bobert Cathcart and Spencer Field, as part owners of said steamboat, to recover damages, &c., for the loss of the said negro, the declaration and tlie record of proceedings in tlie said action, it is agreed shall be considered as a part of this statement. After final judgment was rendered in the said suit against the said plaintiff and Field, as stated in said record, they prayed an appeal therefrom to the Supreme Court of the State of Missouri, where-the said judgment was affirmed, and after the said judgment was affirmed as aforesaid, the said Cathcart & Field, at the April term, A. D. 1845, of the St. Louis Circuit Court, filed their bill in equity against the said James Matson, trustee as aforesaid, praying relief against the said judgment, &c., which bill, and the record of the proceedings in the said equity cause, it is agreed shall be considered as a part of this statement. After the passing of the decree in the said equity cause, the said Matson appealed therefrom to the said Supreme Court, by which last mentioned court said decree was reversed, and -the said bill dismissed. Afterwards, on or about the 18th day of September, 1847, the said Bobert Cathcart was coerced by virtue of an execution issued on the said judgment in the said Court of Common Pleas to pay and satisfy the same, and the said Cathcart on or about the day and year last aforesaid, did pay and satisfy said execution, amounting to the sum of $766 01, being the amount of said judgment, interests and costs, which amount, with the sum of $8 64 previously paid by said Cathcart for costs accruing in the Supreme Court, make the sum of $774 65, which the said Cath-cart has paid by-reason of the said action of trespass on the case. It is further agreed, that at the time of commencement of the said action of trespass on the case against said Cathcart So Field, the said Field was generally reported to be insolvent, and ever since hath been and is now so reputed. The said Joseph Foulke So Sons, the said defendants in this suit, were not at any time personally notified or informed by the said Cathcart & Field, or by either of them, of the institution or pendency of the said action of trespass on the case, nor were the said Joseph Foulke & Sons (the defendants herein) at any time personally notified or requested by the said Cathcart & Field, or by either of them, to defend or aid, or assist in the defense of the said action. Ñor had the said Joseph Foulke So Sons (the said defendants herein) any agency or direction whatever in the bringing or conducting of the said equity cause above mentioned at the time the said Cathcart So Field, and the said Joseph Foulke & Sons were joint owners of the said steamboat as aforesaid, and also at the time of the institution of the said action of trespass on the case, the said Joseph Foulke & Sons (who resided, and ever since have resided in the city and State of New York), were owners of property situate in the city of St. Louis, and with a view to its management and protection, they employed W. W. Thompson So Co. (which firm was composed of Yf. W. Thompson and Edward H. Dix, and both of whom then resided in the city of St. Louis), to act as agents of the said Joseph Foulke & Sons, for the purpose of managing and protecting their said property situated in the said city of St. Louis, including their interest in the steamboat Louisa. But the said Thompson & Dix were not the agents of the said Joseph Foulke & Sons, nor authorized by them to act for them in respect to any other matter, nor for any other purpose than as above stated. It is admitted that soon after interlocutory judgment was rendered against said Cathcart & Field in the said action of trespass on the case the said Cathcart informed the said Edward H. Dix of the pendency of the said suit, but the said Thompson & Dix were not, nor were either of them at anytime notified or requested, as the agents of the said Joseph Foulke So Sons, to defend or assist in the defense of said action, nor were the said Thompson & Dix, or either of them, at any time requested by said Cathcart So Field or either of them, to notify said Foulke So Sons of the pendency of the said action against said Cathcart & Field, nor did the said Thompson So Dix, or either of them, at any time inform the said Joseph Foulke & Sons of the pendency of said suit. It is further agreed that on the 25th day of March, 1844, the said Cathcart sold and conveyed all his right, title and interest in the said boat, her tackle, [400] apparel ancl furniture, to Joseph. Foulke & Sons (defendants herein), which sale is evidenced by an instrument of writing duly executed by authority of the said Joseph Foulke & Sons, and which writing it is agreed shall be taken and considered as a part of this statement, and is in the words and figures following. “Know all men by these presents, that I, Robert Carthcart, of the city of St. Louis, State of Missouri, for and in consideration of the sum of five hundred dollars, to me in hand paid by Messrs. Joseph Foulke & Sons, of the city and State of New York, the receipt of which is hereby acknowledged, have granted, bargained, sold, confirmed and delivered, and by these presents do grant, bargain, sell, confirm and deliver unto the said Joseph Foulke & Sons, and their heirs and assigns forever, the one undivided sixth part of the steamboat Louisa, her engine, ta.ckle, apparel and furniture, as she now lies at the wharf in the city of St. Louis, subject to all liens and incumbrances said boat. It being understood that the-said Joseph Foulke & Sons are hereby fully authorized to collect all claims due or owing to said boat, and the same when collected to appropriate to their own proper use and benefit, and it is also understood and agreed that the said purchasers are to pay all the claims against said boat, and hold the said Cathcart harmless from all such claims. In witness whereof the said Robert Cathcart, in his own proper person, and the said purchasers, by their agent, Alexander Hamilton, of St. Louis, Missouri, have hereunto set their hands and seals, this, the twenty-fifth day of March, in the year of our Lord one thousand eight hundred and forty-four. Executed in duplicate. Robejbt CathcaRT, [seal] Joseph Foulke & Sons. [seal]. By Att’y A. Hamiltox.” It is further agreed that the said Spencer Field also sold and conveyed all his interest and property in the said boat, her tackle, apparel and furniture to the said Joseph Foulke & Sons, which sale of the interest of said Field last mentioned, was made sometime after the institution of the said action of trespass on the case, and after judgment had been rendered therein, but before the said sale by the said Cathcart above mentioned. Now it is stipulated and agreed by the parties to the above entitled cause that the foregoing statement of facts may be submitted to the said Court of Common Pleas as an agreed case, and if the said court upon'the facts aforesaid shall be of opinion that the said plaintiff is entitled to recover against the said defendants for the said sum of money paid by said plaintiff under said execution above mentioned, or any part thereof, then and in such case it is agreed that the judgment shall be entered herein against the said defendants for such amount as the said court upon the facts aforesaid, shall determine they are liable for, together with the costs of this proceeding, to be taxed, &c.; but if the said court, upon the facts aforesaid, shall be of opinion that said plaintiff is not entitled to recover the said sum, or any part thereof, against said defendants then and in such case judgment shall be rendered herein, against said plaintiff for costs, &c. And it is further agreed, that either party may, after final judgment herein, prosecute an appeal or writ of error to the Supreme Court, and this agreement shall not be construed into a release of errors, &c. From the above statement, it is plain that the grounds upon which the plaintiff in error relies for a reversal of the judgment are but two : First.* The liability of the defendants in error as part owners of the steamboat, to make contribution of a portion of the damages recovered by Matson against Cathcart and Field, for the loss of the negro man, while in the employment of' the owners of the boat. Second. Their liability under the contract of sale and covenant therein by Foulke & Sons “to pay all the claims against said boat, and hold the said Cathcart harmless from all such claims. These points embrace the whole case, either one of which being for the plaintiff in error will require a reversal of the judgment of the court below. Let us examine these points. First. The liability as part owners.. The facts, as agreed in this case, leave no doubt in pur minds that Foulke & Sons hacl [401] no notice of tlie pendency of the suit of Matson v. Cathcart & Field. There is nothing showing us that they were privy to said suit. They are not parties on the record. They are not therefore concluded hy the said judgment against Cathcart & Field. In order, then, to force them to contribute a portion of the damages thus recovered against Cathcart & Field, as part owners of the steamboat, for the said loss, it becomes necessary in this action for the plaintiff to make out such a state of facts as would justify the court in the first instance in finding for the owner of the negro against the hirers, that is, against the owners of the boat. In this agreed statement, there is not sufficient proof, in our opinion to warrant or authorize such a finding, and if Cathcart & Field had made proper defense to the action brought against them by Matson, in all probability there would have been no cause ever to have called on Foulke & Sons for contribution. The negro man lost is said to have fallen through a hole in the cook-house of the boat into the Mississippi and drowned. It may have been a mere accident, a casualty, happening without any blame or neglect on the part of the owners of the boat. "We are unable to say, from all that appears in this case, that the owners of the boat were ever liable for the loss of the negro. There is nothing in this first point, therefore, requiring our interference. Second. Whether the claim of the owner of the negro man, for his loss is properly such an one as.is included in the contract, between Cathcart and Foulke & Sons, above'set out, or not, is the last and only remaining point for our consideration. If we are to construe this contract, as it was most probably understood and intended at the time of its making by the contracting parties, there will be but little trouble, in our opinion, in coming to the conclusion that such a claim as the one in controversy was never thought of by them ; and is not embraced in the said contract. The claims alluded to (in our opinion) are such as are liens against the boat, debts due by the boat, or liabilities the boat may be under by virtue of her contracts; not the mere right of action which a party may imagine he has against the owners of the boat, for a supposed neglect of duty, creating a supposed liability on their part as bailees ; debts or demands or claims against the boat were meant, and not mere rights of action against the officers or owners thereof. We entertain the opinion that Cathcart himself never considered the demand for which Matson had brought suit against him, as one properly against the boat, or as one calculated to cause him any trouble or uneasiness. He never pretended to give Foulke & Sons, though they had agents in St. Louis, any notice of the suit. No steps were taken by him to inform them or request them to assist in the defense of a suit brought by a person demanding damages for the accidental drowning of a negro hired as cook on the boat of which he and they were owners. This may be a hard case on the part of Cathcart: he has been made to pay a large sum of money,' which in all probability he would have avoided, had proper defense been made in time. But this neglect to protect himself, gives him no just claim to contribution from the other part owners of the boat. The hardship in this case, proceeds in part from the unbending rigor practiced by the inferior courts in overruling motions to set aside judgments by default; and the practice of this court heretofore of refusing to control the discretion of the inferior courts in such matters. The practice of this court was designed to induce a liberal exercise of such discretionary powers on the part of the inferior courts ; but it has failed of its intention, if we are to judge from the number of cases which come up to this court, involving only the exercise of such power. The judgment below must be affirmed.