Brown v. Morgan — 15 N.Y. Super. Ct. 485

Majority

p. 485

Edgar M. Brown v. Elisha E. Morgan, John Griswold, Edward G. Tinker and others.

Headnote

1. Under a contract for the building of a vessel, the ownership continues in the contractor until the vessel is completed and delivered to the party for whom she is built.

2. The same rule applies where the contract limits the building to “ the hull, spars, top iron work and cabin,” for a sum specified, “ payments to be made as the work progresses."

3. When a ship is built by the contractor, under such an agreement, the party for whom she is built, is not responsible to a third person for materials, or articles used in the construction of the hull of the ship, which, by the contract, the contractor was bound to provide and use therein.

(Before Hoffman and Pierrepont, J. J.)

Heard, Jan. 11th;

decided, Feb. 13th, 1858.

This action comes before the Court at General Term, upon questions of law, arising at the trial, which were there ordered to be heard, in the first instance, at the General Term.

The cause was tried on the 17th and 18th day of December, 1856, and, at the close of the plaintiffs testimony, the complaint was dismissed. The only exception which' the case presented for consideration, material to the review had in the General Term, was the plaintiff’s exception to the order of the Court dismissing the complaint.

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It would seem, from the opinion of the Court at General Term, that the Court deemed the following facts established by the testimony, viz.:—

That, on the 20th of May, 1854, the defendant John Griswold entered into a contract with Jacob A. Westervelt, ship-builder, which was expressed in writing, as follows:—•

“Hew York, 20th May, 1854.

“ Mr. John Griswold : Sir,—I offer to build the hull, spars, top iron work, and a cabin forty feet long, of a ship of the following dimensions, viz.: Two hundred and five feet keel; forty-one feet beam, moulded; twenty-eight feet deep; to have three entire decks; the materials and workmanship to compare favorably in all respects, as well in quality as quantity, with the best modern ships I have heretofore built for the London line of packets or other ships, for the sum of seventy thousand dollars: payments to be made as the work progresses. Respectfully yours,

“(Signed) Jacob A. Westervelt.

“ I accede to the above proposition.

“July 20th, 1854.” John Griswold.”

During the progress of the work, the defendant Edward G. Tinker, who, on the completion of the vessel, became the captain or master thereof, was on board, exercising a supervision over the work, and giving directions in relation thereto.

The plaintiff is a brass and copper founder. Orders were given to his employee (his pattern-maker) to be at the ship-yard of Westervelt, to see Captain Tinker. By whom the orders were left, and by whose authority they were given, does not appear. The pattern-maker attended, took the dimensions, etc., under the orders of Captain Tinker, and various work was done, and materials were supplied by the plaintiff, which were used on the hull of the vessel.

He also furnished other copper work, as the building and completion of the vessel progressed, which was not used in or applied to the hull, but which was confessedly not within the contract of Westervelt.

The supervision and directions given by Captain Tinker are

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described by the witness thus: “ He ordered the work done as captains usually order.”

The work and materials were-charged by the plaintiff to “ the ship Palestine and owner,” that being the name which the new vessel received.

As the work was, from time to time, delivered by the plaintiff, he took receipts for the goods delivered. These receipts were nearly all of them signed by the son and partner of the contractor, (J. A. Westervelt;) or by his foreman, or by other persons in the said Westervelt’s employ.

One receipt was signed “ J. A. W., for John Griswold;” one “ J. A. Westervelt, for owners of ship Palestineone, “ J. A. W.,” without any addition, and one “ E. G. Tinker.”

The plaintiff’s account, as entered in his books, amounted to £1708.22; and the first items were charged under date of Feb. 10th, 1854, and the last, August, 24th, 1854.

The whole bill was rendered, and became the subject of discussion between the defendant Morgan, (who, at that time, was acting for the defendant John Griswold,) and the contractor, Westervelt. Mr. Griswold refused to pay the whole bill, insisting that such of the work and materials as went into the hull of the vessel were not chargeable to him, nor ordered by him; that, in respect to any work or materials in the hull of the vessel, they were included in his contract with Westervelt; and that Captain Tinker’s supervision, of the progress of the work, was only for the purpose of seeing that the work was ¿properly done, as the contract required.

On behalf of Mr. Griswold, Capt. Morgan, on his examination of the bill, selected certain of the charges, viz.: “for yellow metal or Coppering,” which, it was conceded, were not embraced in Westervelt’s contract, amounting to $427.02, and for those the plaintiff was paid by John Griswold.

The vessel was built for John Griswold alone, the other defendants having no interest therein at the time. After her completion, the other defendants, respectively, purchased from John Griswold a share or part of the vessel.

John Griswold paid to Westervelt the whole amount due to him upon his contract, above set forth.

The residue of the plaintiff’s account not being paid, the plain

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tiff commenced this action, not only agáinst John Griswold, for whom the ship was built, but against the other persons who after-wards purchased shares or parts thereof.

It was claimed on the trial, not only that neither of the defendants were liable, because the work and materials, not paid for by Griswold, went into the hull of the vessel, and were embraced within Westervelt’s contract; and that he, Griswold, never purchased or ordered any of them, nor authorized their purchase on his account or credit; but that the other of the defendants had no interest at all at the time, and were not liable; and also, that the action being joint, no recovery could be had, in this action, even if Griswold could be held liable.

The complaint was dismissed, and the questions of law were ordered to be heard at General Term, as above stated.

James W. Gerard, for the plaintiff.

Wm. M. Evarts, for the defendants.

There is no evidence in the case, and none was offered, which would tend to render either of the defendants liable, except Tinker and John Griswold.

As to Griswold, there is no testimony of his ordering the articles, either personally or through an agent. There is no proof of the plaintiff intending to charge him, or furnishing the supplies upon his credit.

The contract between him and J. A. Westervelt brings the case within the authority of Andrews v. Durant, (1 Kernan’s Bep. 85.) The ownership of the vessel was in Westervelt, until she was completed and delivered.

It is true, that this contract did not comprise the construction of the whole vessel; it did embrace the hull, spars, top iron work and cabin. All the materials sued for went into the hull.

There may arise a case, in which a building contract is limited to so small a part of the vessel as to create an exception to the rule of Andrews v. Durant, as where the materials could not have been employed in the portion embraced in the contract;- but, whatever be the rule to be adopted in such a case, the present is

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not of that character. The materials furnished went into the hull, which Wester velt was to build.

His own opinion, therefore, that they were not to be supplied by him within his contract, is immaterial, and his opinion is counterbalanced by that of Captain Morgan.

We consider it to be clear, that no case has been made out against the defendant Griswold.

As to the defendant Tinker, he was neither owner nor master, nor was the credit given to him, nor did the plaintiff ever indicate, until suit brought, an intention to charge him. Indeed, the testimony only proves that he directed where the materials were to be used, their size and fitting—not that he ever ordered them.

The plaintiff has failed to make out a case against either of these defendants. It is needless, therefore, to consider the point raised by the defendants’ counsel, that the misjoinder’ of the other defendants, against whom there was not the least evidence, justified a nonsuit as to all. We apprehend, however, that he is wrong, and that a joint action against any number may be sustained upon the evidence, as to one or more, and fail as to the rest. (1 Kernan, 294; 5 Duer, 328 ; 15 Barbour, 524.)

The judgment will be for the dismissal of the complaint with costs.