The cause was heard upon the pleadings and proofs, and the district court made its findings of fact and conclusion of law as follows: 'First. That the steamer Eclipse, at the time of the commencement of this action, was within the third judicial district of Dakota territory. Second. That on February 4, 1880, the claimant, William Braithwaite, and libelants, with the exception of Joseph McC. Biggert, made and entered into an agreement in writing as set forth in the fourth allegation in claimant's answer. Third. That subsequent to the execution of that agreement by the claimant a further clause was added, substituting the name of Joseph McC. Biggert for that of John D. Biggert, which was signed by all parties to the agreement except the claimant. Fourth. That subsequent to the executin of the agreement the parties paid in eight thousand and fifty dollars, and no more, in amounts as follows:
Capt. W. Braithwaite............... $2,500 00
John D. Biggert..................... 2,500 00
Robinson, Rea & Co.................. 2,500 00
Cadman & Co........................... 100 00
Kay, McKnight & Co.................... 450 00
-Fifth. That in pursuance of that agreement the claimant went from Pittsburgh, Pa., to Bismarck, D. T., in February, 1880, to be present when the said steamer Eclipse should be offered for sale by the United States marshal; and on the 18th day of February, 1880, the United States marshal sold said steamer at public auction at the port of Bismarck, and claimant bid her in, under and in pursuance of the agreement between him and libelants, for the sum of eight thousand five hundred and twenty-five dollars. Sixth. That claimant used in purchasing said steamer all of the money paid in by the parties to said agreement, viz., eight thousand and fifty dollars, and raised the balance of the purchase price, viz., four hundred and seventy-five dollars, on the credit of the said steamer, which was afterwards paid out of her earnings. Seventh. That the claimant, Wm. Braithwaite, and John D. Biggert, negotiated the purchase, and the marshal made the bill of sale to the claimant and John D. Biggert as trustees. Eighth. That the claimant, William Braithwaite, took possession of said steamer Eclipse as master, under and in pursuance of the said written agreement between him and libelants, and so continued in possession as master under said written agreement until he was removed by the United States marshal by virtue of the writ issued in this case. Ninth. That, immediately after the United States marshal took possession of the said steamer, he removed the claimant, and delivered the possession of the same to intervenors, without any order to do so from this court. Tenth. That said steamer was run by claimant during the navigation season of 1880 under said written agreement, and earned eight thousand dollars, which went in to the hands of the financial agent under said agreement; and the same has not been apportioned or distributed. Eleventh. That on February 2, 1881, libelants and claimant signed 'Exhibit A' of the intervention and petition of Joseph Leighton and Walter B. Jordan. At that time, said steamer was lying in the Missouri river, a little below Ft. Benton. Twelfth. That the committee named in said exhibit made a conditional agreement with Charles Batchelor, agent for Joseph Leighton, to sell said steamer for eleven thousand five hundred dollars, if she should not be damaged to exceed five hundred dollars. Thirteenth steamer by libelants, transferring her to intervenors, but was not delivered, and the intervenors had not paid any money thereon, and the claimant never signed said bill of sale, but refused to sign the same, and notified intervenors and the committee that his interest in said steamer was not for sale, before any part of the purchase money had been paid by the intervenors, amounting to $2,500, before the commencement of this action,-was paid after they were notified that the claimant would not sell his interest in said steamer. Fourteenth. That the intervenors are not the sole owners of the said steamer, but the claimant, William Braithwaite, was at the time of the commencement of this action the owner of one-half interest therein, and part owner under and by virtue of the written agreement made with libelants. Fifteenth. That, at the time of the commencement of this action, libelants were not the owners of a majority interest in said steamer. Sixteenth. That there was due to the claimant under the written agreement with the libelants the sum of eight hundred dollars, for wages, at the time of the commencement of this action, and that no money whatever has been paid or tendered to him by any of the parties to this action. As a conclusion of law, I find 1 ) that the claimant, Wm. Braithwaite, is entitled to the possession of the steamer Eclipse.'
The agreement referred to in the second finding is as follows: 'Articles of agreement made and concluded the 4th day of February, in the year of our Lord eighteen hundred and eighty, between W. Braithwaite and John D. Biggert, parties of the first part, and Robinson, Rea & Co., Kay, McKnight & Co., and Cadman & Co., of the city of Pittsburgh, county of Allegheny, state of Pennsylvania, parties of the second part, witnesseth, that, whereas the steam-boat Eclipse is now hopelessly involved in debt, and the said parties of the second part being creditors of said steam-boat, and the said steam-boat is about to be forced to marshal's sale, it being a well-known and recognized fact the owners of said boat are unable to meet the indebtedness, and prevent such sale, the parties hereto, fearing a sacrifice, to protect their several interests, prevent such a sacrifice, and form a fund for bidding up (in) said boat, and afterwards, if knocked down to them, to provide a working capital to manage and run said steam-boat, covenant and agree as follows: First. That each of said parties shall contribute into a general fund the respective amounts set opposite their names, viz.:
Capt. W. Braithwaite................. $2,500
John D. Biggert....................... 2,500
Robinson, Rea & Co.................... 2,500
Cadman & Co............................. 100
Kay, McKnight & Co...................... 450
-Which several amounts are to be paid in cash by the respective parties to said parties of the first part, in case said steam-boat is purchased by them as herein provided; so much thereof as may be necessary to be used for paying such of the bid as may be necessary to be paid in cash, and the remainder to be used as working capital.
Second. That, in addition to said cash fund, the second parties are to contribute as capital the amounts of their respective claims against said steam-boat; and, in case said steam-boat is bought by the parties hereto, their claims are not to be paid at once, but to be receipted for by them, and afterwards paid as hereinafter provided for.
Third. When said steam-boat is put up at marshal's sale, the same is to be bid by said parties of the first part to such an amount as a majority in interest of said amount, $10,000.00, may determine, and be put in the name of W. Braithwaite and John D. Biggert as trustees, and be held by them thereafter, as such trustees, for the following uses and purposes: First that the same be managed and run in the interest of all the parties hereto, said William Braithwaite to act as captain, and John D. Biggert as financial agent; the said Braithwaite to receive a salary of $150 per month, and said John D. Biggert to receive a salary of $100 per month, during the time she is so run in the interest of the parties hereto.Fourth. Out of the earnings of said steam-boat, the respective claims of the said parties of the second part are first to be paid; and, secondly, the full amount of their respective portions of said $10,000 advancement is to be paid, and, when said parties of the second part are fully paid, then this trust shall cease and determine, and the said steam-boat shall remain wholly to the use and benefit of the said Wm. Braith waite and J. D. Biggert, their executors, administrators, and assigns.'
Exhibit A, referred to in the eleventh finding, is asfollows: 'Pittsburgh, Penn., February 2d, 1881. We, the undersigned, creditors and trustees of the steamer Eclipse, hereby appoint William Rea, John D. Biggert, and J. C. Kay our committee to effect sale of said steamer, granting unto them, or a majority of them, power to accept any offer which they may receive for the purchase of the steamer, it being expressly understood that they shall not accept any offer of less than eleven thousand five hundred dollars cash, or equivalent in approved paper.'
Thereupon judgment was rendered dismissing the libel, and also the intervening petition, with costs to be taxed against the libelants and intervenors, respectively, and ordering the marshal to deliver the possession of the steam-boat Eclipse, her tackle, apparel, and furniture, to the claimant, William Braith waite. This judgment was affirmed by the supreme court of the territory, and the cause brought to this court by appeal.
G. W. Guthrie and W. Hallett Phillips, for appellants.
J. G. Bigelow, for appellee.
Mr. Chief Justice FULLER, after stating the facts as above, delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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