Porter's Adm'r v. Castleman ( 1874 )

Opinion by

Judge Lindsay :

Appellant complains of a breach of appellee’s covenants, that the steamer, Pink Varble, was, when sold, “free of any and every lien, privilege or incumbrance.” The proceedings in the district court at Memphis, Tenn., did not result in judgment, and hence do not establish the existence of the claims asserted therein by the libel-ants. The fact that appellee compromised with the parties asserting their claims, proves nothing, as he had the right to escape even unfounded litigation by buying his peace, and it may have been, and doubtless was, much cheaper to compromise than to make successful defense.

The answer of Castleman, so far as he attempts to deny the existence of the liens in favor of Downs, etc., is as specific as are the allegations of the petitions; and appellants cannot complain that their general averments to the effect that there were such liens, were not taken for confessed. The testimony of Johnson does not establish a contract of affreightment between the parties of the Pink Varble and any of the parties claiming to be salvors of the cotton taken from the wreck of the W. A. Caldwell. The best evidence as to the nature of the agreements between the master of the Varble and Downs and Johnson are the receipts given to each of them. These receipts were not produced, nor is there anything in the record explaining their contents. The whole testimony tends to show that Downs, Johnson and the officers and crew of the Varble were the joint salvors of the cotton, and that it was carried to Memphis on their joint account. There is certainly no such contract proven as would bind the boat. This view of the case makes it unnecessary to examine the remaining questions presented in the agreement. It is clear that appellee is not bound to make good the loss resulting to appellant from every claim that parties may choose to assert against the boat.

■Havian, Wilson, for appellant. Boyle, for appellee.

Judgment affirmed.