40 Mo. 244 | Mo. | 1867
delivered the opinion of'the court.
The suit is founded upon an account for items of stores and supplies, and of money furnished to purchase stores and supplies, upon a special request for that specific purpose; and the account ran from the 20th of August, 1864, to the 8th day of May, 1865, with an interval of less than six months between November, 1864, and May, 1865, the boat being absent during the winter. There was evidence tending to show that all the items of the account were for stores and supplies, and were a lien upon the boat under the stat
It has been argued that this was not a mutual open account. . The statute requires only that the suit shall be commenced within six months “ after the true date of the last item in the account upon which the action is founded.” The action is based iipon the statute, which does not require a mutual account, but supposes that the items may be all on one side of the account. The limitation is to be reckoned from the date of the last item, and it matters not that some of the earlier items may bear date before that time ; but it is supposed that there is but one account and one demand, and not several separate and distinct demands—Carson v. St. Bt. Hillman, 16 Mo. 256. Where it is specially agreed or impliedly understood between the parties that the account is to be kept open and continued as one, and the same continuous transaction and course of dealing, the account will be considered as one continuous account and one demand—Madison Co. Coal Co. v. St. Bt. Colona, 36 Mo. 446. There was evidence before the court from which it might reasonably be inferred that such had been the understanding of the parties and the real nature of the transaction in this case, and the verdict will not be disturbed on this ground.
As to the admission of the paper signed by the captain and owner, to which exception was taken, it is unnecessai’y to say more than that the testimony was conflicting as to the time when it was signed, and that there was ample evidence, otherwise, to establish the account and the lien. If it were signed while the party was still an owner, it was certainly admissible—Phillips v. St. Bt. Eureka, 14 Mo. 532.
If it had been signed after he ceased to be an owner, or after the beat had been seized and ordered to be sold, it
On the question of jurisdiction, the case comes within the decision in the case of Cavender et al. v. St. Bt. Fanny Barker, decided at this term. The demand consists of stores and supplies furnished to the boat at the instance of the captain and owner, while lying in this port. It appeared that the boat belonged to this port and that the owners were resident here. The contract was made within the body of the county ; and the parties and the boat itself were within the territorial jurisdiction of this State. This was a land' contract, though relating to a vessel, and not a maritime contract within the exclusive jurisdiction of the admiralty ; unless it were to be held that all contracts relating to a boat or vessel must necessarily be maritime—2 Pars, on Mar. Law, 512. Marine contracts, of which the admiralty has cognizance, have been defined to be “ contracts made on the sea, whose consideration is maritime, and not ratified by deed nor under seal.” And it has been laid down by high authority that “ no person can sue in the admiralty for work and labor done in port before the voyage begins, or for necessaries so Id for the ship’s use before she sails ”—2 Brown’s Civ. & Adm. Law, 72-80; Ross v. Walker, 2 Wils. 264; Wilkinson v. Barnardiston, 2 P. Will. 367. “Admiralty causes,” says Blackstone, “ are those arising wholly upon the sea, and not within the precincts of any county ”—3 Black. Com. 106. It may be otherwise in a case of a boat or vessel needing repairs or supplies in a foreign port, where the' owners do not reside, or are absent, where the contract must operate solely in rem, and where a lien is given in the admiralty—3 Kent’s Com. (7th ed.) 214, 218. In such case the jurisdiction in rem may be exclusive in the admiralty, but here the contract is not maritime, and the jurisdiction in rem is given by the
According to the views above expressed, the court committed no error in the giving or refusing instructions. The evidence sustained the verdict, and the judgment will be affirmed.