Phelps v. Steamboat Eureka

Ryland, J., delivered the opinion of the court. From the statement above made, it becomes necessary for this court to review the action of the court below in regard to the instruction which that court refused to give on the part of the appellant, as well as those which were given. The instructipns which the appellant asked of the court appear in substance in the above statement. We think the court erred in refusing to give these instructions, or to declare the law to be as contained in these instructions. The first instruction is based upon the evidence of the reloan. Surely there was no necessity for the parties to count out the money, to pay it over, and then have it paid back in order to make a new loan. The money from the evidence preserved in the bill of exceptions was ready in the money drawer of the boat. The plaintiff came for it. The owners of the boat wanted to have the money for six months longer. It was agreed that a part of the money should be thus loaned for six months longer, and the balance paid to plaintiff. The plaintiff then received one hunderd and fifty dollars, and the balance of the thousand dollars was left with the boat, being eight hundred and fifty dollars. It appears that the boat needed this sum in order to pay off heavy bills for charges against the boat; and it was necessary for the boat in order to continue to navigate the waters of this State. This transaction took place on the 15th November, 1849, within six months before the application of the plaintiff below appellant here to have his demand allowed against the boat as a lien. [535] We think the court should have declared the law as embraced in this instruction; should have stated, that a reloan might have been inferred from this state of facts. The admissions of.the owners of the boat were clearly evidence in this case. There is nothing in the statute prohibiting such admissions of owners from being evidence. The 30 sec. of the statute concerning “Boats and Vessels” Rev. Code 1845 page 186; declares, That, “neither the captain, clerk, nor other officer of any boat or vessel shall have power to bind the boat, or vessel, by giving bonds, or notes, or by making any other admission of the indebtedness of the boat to any person whatever.” This prohibition does not extend to the owners or owner; it includes only the officers as such; “The captain, clerk or other officer.” The 29th section uses among other words the word “owner;” giving to the captain, agent, owner, consignee, or other person interested, the right to appeal from any judgment &c. And the omission to insert the owners or owner in the 30 sec. among the persons incapable of making bonds or notes or admissions of indebtedness, clearly shows the object of the legislature, was not to exclude such admissions of the owners. The officers cannot bind by admissions, but the owners can. We think therefore that the court erred in refusing to declare the law as contained in the second instruction. The second and third instructions given for the defendant below, may be considered as the reverse of those asked by the plaintiff. Consequently are disposed of when we declare, that the court below erred in repressing the plaintiff’s instructions. For the giving of these instructions for the defendant below as well as for the refusal to give the instructions asked for by the plaintiff below, the judgment must be reversed and this cause remanded.