Darby v. Steamboat Inda

9 Mo. 645 | Mo. | 1845

McBride, J ,

delivered the opinion of the Court.

This was an action under the statute providing for the collection of demands against boats and vessels. ■ R. C. 102.

The complaint filed in the cause alleges that the defendant is indebted to the plaintiff for work done and materials provided by the plaintiff’s intestate, in building the hull of the steamboat Inda ; that the demand is evidenced by anote executed by one Alter, captain of the Inda, which is exhibited with the complaint, and is dated 11th October, 1842, and payable'on the 1st February, 1844. The defendant filed his demurrer to the complaint; which having been overruled by the circuit court, he obtained leave to withdraw it, and pleaded nil debit.

The evidence given on the trial of the issue in the court below, consisted of the note of William Alter, captain, &c., appended to the complaint; an admission of his handwriting, and that he was at the date of the making of the said note, captain of the steamboat Inda, and the testimony of a witness who stated that Hubbard, one of the owners of said boat, told him that the note was given for cylinder timbers, and other heavy timbers, water-wheel beams, and work done on the upper part of the said boat.

The plaintiff having closed his evidence, the defendant offered none, but demurred to the evidence of the plaintiff, and asked the court to render him judgment thereon, which the court did; whereupon the plaintiff moved to set aside the judgment, and for a new trial, which having been overruled, he excepted, and now brings the case to this court by a writ of error.

. Waiving all question as to the propriety of the course pursued in this cause in demurring to the evidence, and thereby taking the esse from the jury, we will examine the question of law raised by the demurrer.

By the third sub-division of the first section of the supplemental act 'of 1838, it is provided that a lien shall exist for all materials furnished, and labor done by mechanics, tradesmen, and others, in the building, repairing, fitting out, furnishing and equipping such boat or vessel. It would be under this class the plaintiff’s demand would come ; and the statute gives him the right of proceeding against the boat by name, and enforcing his lein.

By the twenty-first section of the act of 1835, it is declared that all actions ágainst a boat or vessel, under the provisions of the act, shall be commenced and sued within six months after the cause of such action shall have accrued. When did the cause of action in this case accrue, in the meaning of the statute? The plaintiff insists that it was upon the falling due of the promissory note executed by captain Alter, about sixteen months after the services were rendered by the.plaintiff’s intestate; and that he would have a right to bring this form of action, at any time within six months thereafter.

We are not prepared to sanction this construction of the statute ; but think it manifest from the whole scope and abject of the statute, that the liabilities provided for by this summary proceeding, are such as the law would raise without any agreement between the parties for time. They are such as would accrue, and upon which an action could he brought within six months after the materials were furnished, or the labor done, in the building, fitting out, or repairing the boat or vessel.

It is a lien which the law gives without the agreement of the parties, and if the parties make a contract contravening the provisions of the statute, and it becomes necessary to bring an action thereon, such ae~ tion must be brought upon the eontract thus made, and under the general law of the land. It is not competent for the parties to enlarge the lien given by the statute, and that it is declared to exist for six months only; any agreement deferring the payment beyond six months after the materials were furnished, would take the cause of action out of this statute, and put the parties upon the same footing with all ethers, and-the lights subject to the same general law of the land.

It appears from the complaint, that this action or proceeding is for the furnishing of materials for the building of the boat, and that reference is made to the promissory note of captain Alter, for the amount of the plaintiff’s claim or demand. Now if the note affords evidence of the plaintiff’s demand, that demand must have accrued prior to the date of the note, to-wit: the 11th October, 1842, and the suit should have been instituted, (if intended to be under the statute giving alien,) within six months next after the date of the note; whereas it was not brought until the 24th of March, 1844. If the suit was intended to have been brought upon the note, which gives the defendant about sixteen months for payment, then the plaintiff misconceived his remedy, for no action will lie under the statute, upon such an instrument.

For the foregoing reasons, we are of the opinion that the circuit court committed no error in sustaining the defendant’s demurrer; and that its judgment should he affirmed ; and the other members of the court concurring, the judgment of the circuit court is affirmed.