POWER v. MUNGER. (Olrcult 'Oourt of Eighth Circuit. ;rul,. 16, 1894.) No. 410.
:W., .who was operating Ill'arine ways, agreed with P. to haul the latto the ways, and keep it there. In handling the steamer, W·. allowed it. to. collide with a boat belonging to B. Suit was brought in. the. federal court P., and a judgment for $9,572 was rendered. Pending an aweal .from the judgment, B. sued W. in the. state conrt; and obtained of $4,300, from which an appeal was pending, when W. andP.'agreed that if W. would withdraw his appeal, and pay the judgment,; .. would 'contribute one-half thereof, and that, UPOll the discharge of,tblUudgment, P. would try to have the judgment <Uscharged, but that, if he was compelled to pay it, W. should refuJid him the said amount' paid by him and used towards paying the jU(1gmentagainSt W.,whUe; If P. should succeed in getting the judgment him satisfied, amount so paid by him towards satisfying the 311dglDent against W. shOUld not be refunded. P. eventually had to pay the judgment against him. Held, thatP. could not recover from W. the am()unt of such judgment against him, on the ground of W.'s negligence, the agreement having expressly defined W.'s liability, and thereby rahim from all other liability growing out of the accident.
In Error to the OircuitConrt of the United States for the District of Minnesota. Action. by Thomas C. Power against Roger S. Munger to recover the amount of a decree rendered against plaintiff lnan admiralty snit. . Defendant had judgment, and plaintiff brings error. Af·
In the month of November, 1879, the firm of C. S. Weaver & Co., which was composed of C. S. Weaver and Roger S. Munger (the latter of whom is the defendant in error), were in charge of and were operating certain marine wa.ys at Bismarck, in the then territory of Dakota. On the 17th day of November, 1879, the firm entered into two contracts with the respective owners of the steamers Butte and· Colonel McLeod to haul the said steamers out of the Missouri river, and to .furnish room for the same on the marine ways in question, until the opening of naVigation in the spring of the year 1880. In the execution of these contracts, the steamer Butte was first hauled out of thEi water, and partially up the ways, when work was suspended on her for the time being, and the steamer Colonel McLeod was moved to the foot of the ways for the purpose of being drawn out of the water before ice had formed in the river. While the steamers were in this situation, the Butte slid down the ways, becauselt was not securely blocked and stayed. It collided with the Colonel McLeod, and caused the latter to sink. Sub· sequently, in the month of July, 1881, John Baker and others, who were the owners of the steamer Colonel McLeod·. filed a libel in personam in the United States district court for the district of Minnesota against Thomas C. Power, the present plaintiff in error, and also against other persons who were at the date of tbe collision the owners of the steamer Butte, for the da.mage that had been sustained by the sinking of the steamer Colonel McLeod in the aforesaid collision. This suit in admiralty eventually. resulted in a decree again&!; Thomas C. Power for. the sum of $9,572, from which decree he took an appeal to the United States, supreme court. While the latter suit was pending and as yet undetermfned, to wit, in the month of August, 1883, Ba,. ker and others also brought a 'suit at common law against C. S. Weaver & Co., In the district court forSt. Louis county, in the state of Minnesota, to recover the damages sustained by the aforesaid collision, which latter suit
POWER V. MUNGER.
was grounded on the alleged negligence of Weaver & Co. 1D fatUng to properly stay and block the steamer Butte whlle it was resting on the marine ways and was in their charge. The trial of this latter aetton at common law resulted in a verdict against C. S. Weaver & Co. in the sum of $4,300. which was rendered on the 24th day of August. 1884. Weaver & Co. obtained a stay of proceedings on this verdict, with leave to file a motion for a new trial. and such motion for a new trial had been filed and was pending and undetermined on the 5th day of March, 1885. In the meantime the suit in admiralty against Power and others had been tried and determined, and on the 5th day of March. 1885, that case was pending on appeal from the decree against Power in the supreme court of the United States. In this posture of aJrairs, and on the 5th day of March, 1885, Roger S. Munger, the defendant in error. for himself and in behalf of the firm of C. S. Weaver & Co., entered into an agreement with Thomas C. Power, the plaintiff in error, which agreement, after reciting substantially all of the facts aforesaid, contained the following stipulations, to wit: "Therefore it is agreed by and between them that said C. S. Weaver and Roger S. Munger shall discharge the stay of proceedings entered in the case against them, and allow judgment to be entered therein on the verdict; and. when judgment is so entered, the said Thomas C. Power shall contribute and pay one-half the amount of said judgment to the said C. S. Weaver and Company, to be by them used in paying said judgment, which they agree to do at once upon receipt of the same from said Power, and cause said judgment against them to be discharged and satisfied of record. And it is further agreed that, immediately upon the jUdgment against said C. S. Weaver and Company being discharged of record, the said Thomas C. Power shall commence proceedings to have the said judgment against him discharged and satisfied; and, to accomplish that end, he agrees to exhaust all means known to the law in all courts having jurisdiction, original or appellate, at Ws own proper costs and expense; and If, after making such efforts to have said judgment against him satisfied of record, he fails, and is compelled to pay the same, then and in that event the said Roger S. Munger and Charles S. Weaver agree to refund and pay over to him the said amount paid by him and used towards paying the said judgment said C. S. Weaver and Company. And, if the said Power shall succeed in getting the said judgment against him satisfied, the money so paid by him towards satisfying the said judgment against C. S. Weaver and Company shall not be refunded or paid to said Power, nor shall the said Power have any claim or demand against them for or on account therefor." In compliance with the provisions of the foregoing contract, the pending motion for a new trial which had been filed by Weaver & Co. in the suit against that firm in the state court was witDdrawn. Judgment was entered on the verdict therein, and the amount of such judgment was paid into court for the use 01" the plaintiffs. This judgment was by the state court ordered to be entered as satisfied on July 20, 1885. Power did not succeed in obtaining a reversal of the decree in the admiralty suit, but was subsequently compelled to pay the same. 'fhe present suit was brought by Thomas C. Power against Roger S. Munger to recover the fUll amount of the decree rendered against him in the admiralty suit. The action was brought upon the theory that the firm of Charles S. Weaver & Co. was liable to Power for the damages resulting from the collision, which he had been compelled to pay to the owners of the steamer Colonel McLeod, because the firm of C. S. "reaver & Co. became the agents of Power and the other owners of the Butte, by virtue of the contract made to draw the steamer Butte out of the river, and that they were liable to their principals for a negligent performance of that duty. On the trial of the suit in the circuit court, that court appears to have held that the contract entered into between Thomas C. Power and C. S. Weaver & Co. on the 5th day of March, 1885. was in effect a release of the liability sought to be enforced in this suit.
Henry L. Williams (C. D. & T. D. O'Brien, on the brief), for plain· tiff in error. W. P. Warner (Harris Richardson and C. G. Lawrence, on the brief), for defendant in error.
: ' '
, Befure',eALDWELL and SANBORN, CircuitJudges, andTHAYi'
stating the as above,deliv,'.' . ' " . n; 1I4,VIJ;lglj1Vltll,Vtb.e re,latlOhS 'exlstmg, between partIes to the 5, 188S, the terms of and the cit'eumstafiCl3'SU1lder which it was executed, wc;::feel constrained to to have ruled,' that the agreement the ,prMHtiff in errorrfrom recovering' on the in suit. !tappears that the cause ofllCtioP l:ltated in owners of the steamei':Colonel McLeod had recovered two judgmen,ts .in, I,different forums' for the same wrong and injury,-the one agaiXlst ,1homas "C. in. the admil'alty court, and the S. Weayer S. Munger, in the state other court. The latter persons questioned the validity of the verdict wWch, bad been rendered against them, and were in a position toll:t14ckthe verdictjn the trial court, and to have it reviewed on Q.writ',of erro,rbyan appellate tribunal. At this juncture, Power",the plaintiff in error, seems to have intervened for his own advantage, and to, have induced Weaver and Munger to of the suit against them. The propQsition,to let a jmlgment. be entered against Weaver & Co. in the stl}te ,court upon the verdict that had then been returned, and to pay that, judgment, seems to have come from counsel who were . py the present plaintiff in error, arid the proposition in 'ques0'9u,' appears to have been .made, in the· belief, that, if the 'judgment: in the state court was paid, it would operate to dis.charge the l'lecree in suit, which was then pending on appeaUn}lte .supreme court United States. That it did Dot hayethe·mtended operation iaa matter of nQconcern to Weaver ,&00" as-the opposite party took his chances that it would have such ,effect, andeannot now be heard to complain if be was misled or was mistaken.,' It also appears from the record that the money paid into the statec,Qurt by Weaver & 00., pursuant to the agreement of March 5j 1885, was actually withdrawn under some arrangement Power, and that the fund was between Baker and others (lecree against the latter in the adeventually used to satisfy miralty court. But it is more important to observe that the very event has now happened which was foreseen by the parties to the It was agreement of March 5, 1885, and was provided for stipulated .w'., that agreement, in substance, that if said Thomas O. ,Power faihi, to have the, decree against him satisfied, and is compelled to pay the same, "then and in that event the said Roger S. Munger S.Weaveragree to refund and pay Over to him the said amount paid by him, and used towards paying the said judgment against C. S. Weaver & Co." This clause of the agreement, we think, is the measure of the liability which the plaintiff in error can now enforce against the members of the firm of O. s.. Weaver & Co., or either of them,iinasmuchas the very contingency has arispn which the parties foresaw and provided for. If it was intended
CHICAGO, B. & Q. R. CO.
that Weaver & Co. should rest under Qr assume any other liability to the opposite party to the agreement than the one above expressed, in the event that he was compelled to pay the decree of the admiralty court, that additional or different liability should have been stated. It is a fundamental rule that in the absence of fraud or mistake, when parties see fit to put their engagements in writing, the written agreement is conclusively presumed to express all of the obligations which either party intended to assume towards the other. It is of no importance, therefore, that the contract in question did not expressly declare that Mr. Power would not seek to hold Weaver & Co. liable to him for the full amount of the admiralty decree, if he was eventually compelled to pay it, for that agreement is necessarily implied in what was in fact expressed. We also consider it very improbable that Munger and ·Weaver would have consented to abandon the defense of the suit pending against them in the state court, and to pay the judgment therein on the terms mentioned in the agreement of March 5, 1885, if they had understood that Power and the other owners of the steamer Butte claimed that Weaver & Co. were liable over to them for whatever sum they might be compelled to pay in settlement of the existing decree in the federal court, and that such a demand would, in the end, be preferred against the firm of C. S. Weaver & Co. It is far more reasona ble to believe that and Weaver acted in the belief that the contract of March 5, 1885, was a release from all further liability on account of the collision between the two steamers, except the liability stated in the agreement to refund to Mr. Power the money which he had advanced to help pay the judgment in the stat.e court, if the latter was unsllccessful in avoiding the payment of the existing judgment in the federal court. Such, we think, was the in. terpretation placed upon the contract of March 5, 1885, by all of the parties thereto when it was executed; and such, we think. was the necessa.ry legal. effect of that agreement. Entertaining that view, it becomes unnecessary to consider some other interesting questions presented by the record which have been diRcllssed by counsel with much thoroughness and ability. The judgment of the circuit court will accordingly be affirmed.
CHICAGO, B. & Q. R. CO. v. HONEY. (Circuit Court of Appeals, Eighth Circuit. July Hi, 1894.) No. 393.
INJURY TO WrFE-AcTION BY OF WIFE.
Notwithstanding the provision of McClain's Code Iowa, § 33!l6, that a husband shall not be responsible for civil injuries'committed by his wife, al).d other provisions enabling a wife to hold property, contract, and sue ill her own name, a husband, in an action for loss of his wife's services. occasioned by the negligence of ano'her, wllI be charged with her contribu tory negligence.
In Errol' to the Circuit Court of the United States for the South· ern District of Iowa.