Majority
p. 23Miles Coryell, plaintiff and respondent, vs. William Perine et al. defendants and appellants.
Headnote
1. Where a person enters into a contract with the United States government to build, equip and fit out a steam vessel for it, on account of the price of which, such government is to make certain advances as the work progresses, and have a lien upon the vessel therefor, no claim on such vessel, by the government, for advances made by it, will injure the lien on such vessel acquired by one who has furnished materials and labor for building the same, so as to destroy the validity of any bonds given by such contractor to procure the discharge of the vessel from attachments issued to enforce such lien.2. The obligors in such bonds are liable thereon for any claim of a creditor that is a hen on the vessel, whether it can be enforced against her or not. Even if the United States government had a hen, which would be an obstacle to the enforcement of the creditor’s hen, the obhgors will be deemed to have waived all objection on that ground, by executing bonds to procure a discharge of the attachment.
3. Where the United States government had no right of possession under a contract for building a vessel for it, until completion, or default of the contractor; Held that the mere covenant for a lien by it on the vessel for advances, contained in the contract, was ineffectual, as are all hens without possession, when not created by statute. Such a contract for a hen creates only an equitable hypothecation. Under such a contract there is no transfer of ownership, until the vessel is delivered and accepted. When the contract itself provides for a subsequent dehvery and acceptance of the vessel, the right of the government to take possession, on default, and finish the work, implies that until that time the possession and ownership continues in the contractor.
4. The act of congress of July, 1862, which puts contractors for supplies under the same military control and discipline as the land and naval forces of the United States, is not so applicable to vessels or their appurtenances, as to put such vessel, or indeed the supplies themselves, under the control of United States officers.
5..It is fully settled that a contract for building a vessel, or furnishing materials, or doing work therefor, is no more a maritime contract, so far as a lien therefor may be created, on such vessel, by state laws and enforced by state courts, than building a house or doing any work upon any article by which a lien may accrue upon the subject of such work.
6. A creditor is entitled to a lien for the value of every thing necessarily consumed, and for every expenditure necessarily incurred, in completing the tyork performed by him, and is not confined to the mere work done upon parts of the vessel, or materials furnished which remain as part of its structure or equipment. The use of the preposition “.towards," as well as
p. 24(Before Robertson, Ch. J., and Garvin, J.) Heard October 23, 1867; decided January —, 1868.
"for,” in the statute, shows the intention of the framers of the statute to include all materials consumed, as well as those entering into the composition of the vessel or any of its appurtenances.
This was an action upon two "bonds under seal, executed by the defendants to the plaintiff in October, 1865; the first in the penalty of $21,000, dated the fourth, and the second in the penalty of $25,000, dated the twenty-first of that month. Each of such bonds recited the issuing of a different warrant of attachment against a. steam tug or vessel, (The Triana,) by a different justice of the Supreme Court, to enforce a lien of the plaintiff for separate claims upon her, and an intended application for their discharge, the first warrant being issued in September, 1865, for upwards of $10,000, and the second on the 19th of October following for upwards, of $12,000. The condition of each of such bonds, respectively, was that the defendants or their representatives should pay the plaintiff the amount of all claims and demands established to be due to him and to have been “ subsisting liens ” upon such vessel, her tackle, apparel or furniture, pursuant to the provisions of the act of the legislature of the state of Hew York of April 24,1862, and the acts amending the same, “ providing for the collection of demands against ships or vessels.”
In December, 1863, the defendant Ferine, entered into a contract with the government of the United States to build, equip and fit out the hull, spars, rigging, sails, boats, steam machinery and other enumerated appurtenances, and all the equipments and outfits connected therewith, necessary for an iron screw tug boat of about 350 tons, “ to be delivered afloat in every respect fit for sea service.” Such vessel, machinery, equipments and outfits were to conform to specifications and drawings furnished. . The materials to be of the best quality and free from defects, the equipments and outfits to conform to those used in the "United States navy, and both to bear the tests of similar articles made in the
p. 25
naval service. Persons appointed by the navy department to inspect the work, were to have the right to reject at any stage of it, materials or articles considered by them defective, either in material or workmanship, and every part and arrangement were to be satisfactory to them. Such vessel was to be completed in eight months from the date of such contract, and “promptly delivered” at the builder’s expense “to the navy department at the nearest navy yard.” The magazines and other enumerated apartments and receptacles of ammunition, and all parts connected therewith, rings, bolts and all arrangements connected with the hull and appertaining to the armament, were to accord with instructions to be given from the ordnance bureau of the navy department, and all apartments and rooms of every kind were to be conveniently arranged and fitted to the satisfaction of the government inspector. The builder was also to protect the government from all claims for fees for patents of articles used in the construction of the vessel. No officer of the government was to share in the agreement or any benefit therefrom. If they did, or there was any failure to perform the contract, the government had the option to declare it void. In case of any failure or neglect by the builder to fulfill such contract, and “ have the vessel with its machinery delivered,” as before stipulated, the navy department was empowered “ to enter into and take possession of it and direct purchases to be made of all the necessary materials and cause the vessel to be completed and fully equips ped as therein described.” Any excess of cost was to be at the expense of the builder, unless the delay was caused by the action of the navy department. The total price for every thing was to be $128,000. The payments to be made in six parts, reserving one fifth on each payment. A certain rate of increase or decrease was to be made in the amount according to the number of months the vessel should be completed before or after the fixed' date. The bills were to be presented, certified by the navy department superintendent and paid by navy agents.1 The last payment was
p. 26
not to be made until the vessel was finished, and the fifth of the purchase money reserved was not to be paid until the hull, machinery, equipments and outfits were complete and satisfactory to the navy department. The navy department was to have a lien on the vessel and all materials provided for the fulfillment of the contract, for the money advanced by the government upon it, and the builder was to keep as much of them as were liable to injury until delivered, insured against fire and flood, to the extent of such advances, the policies to be made payable to the Hnited States. All transfers of any interest in such contract were to render it void. The builder was to deliver within one month after completing the machinery, drawings of every piece used in its construction and general plans showing the combination of the whole in detail, with dimensions, weight and materials of every part, so as to enable it to be reconstructed. The builder and his sureties guarantied a trial trip of the vessel, under steam of a certain pressure, and with a vacuum of a certain number of inches, for six days at sea, to be successful and of such a character as to demonstrate certain good qualities of the machinery; also that. the materials should not deteriorate or depreciate, beyond ordinary friction, for three months. In case of failure during such trial trip from imperfection in the details of the design, mal-construction of machinery, fault of workmanship or bad quality or composition of materials, the navy department was to have modifications, alterations, substitutions and repairs made, to produce a permanent, or satisfactory operation at the expense of the builder. During such trip the engineer managing the machinery was to be subject to the regulations of the naval service, and the supervision of engineers appointed by the navy department, as directed by the ■ secretary of the navy.
After such vessel was on the stocks, and nearly ready for launching, the defendant Perine employed the plaintiff to do the work of preparing the different parts of her engine
p. 27
for being fitted together and of fitting them to each other in her, and agreed to pay him therefor all that the plaintiff should pay for such work done for him and a quarter thereof in addition, and two dollars a day for the use of various ^achines necessary to be used in his workshop in preparing such parts of the machinery for being fitted together, (lathes, planers, Blatters and shapers.) The amounts due were to be paid every fortnight on bills rendered according to the pay roll. The time of the employment of the plaintiff’s workmen on such work, was taken down by a time keeper in his employment twice a day in a memorandum book, from whence it was transferred to a general time book for making up a pay roll every week. It contained such time, and'the wages paid to each man. At the subsequent request of the defendant, (Perine,) the plaintiff also furnished “small stores” used in building the engine, (such as files, oils, lamp wick and emery paper,) and small articles for fastening the machinery together or working it, (such as bolts, nuts, washers, valve rods and brass work,) for which he charged at the. usual rates in his bills of work rendered every fortnight, until October 14th, 1855, at the defendant’s office. The plaintiff also subsequently paid on behalf of the defendant Perine, at his request, for work done by others on parts of such engine, and finally furnished by agreement with him materials for various parts of the engine, exceeding in value $7000. By a new agreement between the parties, the plaintiff began to put up such engine in the vessel before she was launched, and finished it afterwards, at the same rate of pay for the work, as under the first agreement, for which bills were rendered.
In such bills rendered, about ten dollars worth of wood furnished,' out of which to make small pateras, called templets, and moulds wherewith to shape parts of the machinery, was charged, as well as the cost of the labor bestowed in making them. Charges were also included in such bills, for work done a second time, in making alterations required by the government, and for materials substituted in place of
p. 28
others removed. Such work consisted of a new cylinder, (cast in place of a defective one,) the finishing a second throttle valve after a prior one, (whose casting was furnished by another person,) had been condemned; bonnets furnished to check valves, (supplied by other parties,) because previous ones were defective, and restoring a bilge pump which had been removed by order of a government inspector. The only other materials removed was sheet iron for the conduit or blower channels, for which boiler plate was substituted, and it was used for man hole plates. All of. such changes were made in consequence of the objections of an officer of the United States government, under the contract.
The complaint in this action set forth that the builder of such vessel, (The Triana,) within six months before the 1st of September, 1865, contracted with the plaintiff a debt in the city of Eew York, “ on account of work done and materials furnished for and towards the building, repairing, fitting, furnishing and equipping such vessel,” between April and September, 1865, to a certain amount, ($10,386.04,) on which that sum was due and owing and a lien on such vessel. It then alleged that the plaintiff, on the 1st September, 1865, filed in the Eew York county clerk’s office a specification of such lien containing a bill of particulars of Ms demand and a statement of the amounts claimed to be due from such vessel, duly verified by his oath. It also recited' the application for the first warrant of attachment against such vessel, and its discharge upon the execution of the first bond sued upon in this action.
The complaint also set out as a second cause of action the employment by the defendant Ferine, (as the builder of such vessel,) of the plaintiff “ to perform ” work and labor and furnish materials for and towards the building, repairing, fitting, furnishing and equipping the iron work and machinery of the same vessel until it was nearly completed, and to render an account thereof, and agreed to pay him every fortnight, as such work and furnishing of materials advanced. That the plaintiff did such work and fur-
p. 29
"fished such, materials between November, 1864, and October 21, 1865, amounting to $22,054.16. It alleged that in March, 1865, one John Mott, at the request of the defendant Perine, assumed the building and finishing of such vessel, and continued the same agreement with the plaintiff, who completed such work in October, 1865, when the vessel was nearly finished.
The complaint admits that the sum of ten thousand dollars was paid to him on account of such claim, which he applied to the earliest items in the account, leaving $12,054.16 unpaid and still due. That the plaintiff, on the 21st of October, 1865, filed a proper specification, duly verified by him in the county clerk’s office, containing the particulars of his demand, which was then a subsisting lien. It also recited the application for and issuing of. a second warrant of attachment and the discharge of such attachment upon giving the second bond sued upon in this action. And the complaint demanded upon both bonds the last mentioned sum with interest.
The answer denied the claim set forth in the first cause of action in the complaint, and that it was a subsisting lien on the vessel in question on the 2d of September, 1865, and put in issue the other matters alleged in the complaint as to such first cause of action. It also denied that the work and labor mentioned in the second cause of action set out in the complaint, amounted to $22,054.16, - and that it was a subsisting lien on such vessel on the 21st of October, 1865, and took issue on other allegations contained in such second cause of action. Such answer also contained a counter-claim for $10,000 damages, caused by the plaintiff’s delay from June to October, 1865, after agreeing to construct an engine for the vessel in question and deliver the same (without detention of such vessel) to the defendant Perine, in consideration of the payment of the value of the work and labor, and one fourth thereof in addition, every fortnight. A reply was put in to such counter-claim, taking issue upon the allegations in relation thereto in the answer, and alleged
p. 30
that the defendant Perine caused the delay in such work, by failing to furnish the materials for such engine and to pay such bills every fortnight when presented.
The issues were referred to a referee (H. W. Robinson, Esq.) to be heard and determined, who made a report containing findings of fact and conclusions of law; giving judgment for nearly $13,000 ($12,969.69) for the plaintiff, upon which judgment was entered. From such judgment the defendant appealed, having filed exceptions to the report.
The referee found by his said report, as facts, the matters alleged in the complaint, and that a claim for over $3000, ($3028.12,) not embraced in the first claim, had become a lien on said vessel, in addition, at the time of such second attachment; that a considerable portion of such debt was created by work, (for the previously mentioned purposes,) by machines of the plaintiff fixed in his shop, upon the engine and fixtures furnished for such vessel, and some portion for small stores consumed in the work, the value of the use of which machines (during the time they were employed upon such work) and of such stores was included in such debt and fairly determined its amount; that the defendant undertook the building the hull of a vessel of about 250 tons under a contract with the proper officer of the United States navy department, and her equipment with steam machinery, masts,- spars, rigging, sails, boats and other appurtenances, with outfits necessary for an iron steam screw tug boat, to be delivered afloat according to certain plans, for a certain sum, ($128,000,) of which four fifths was to be paid in six ' installments, and the residue (one fifth) on her completion and delivery and acceptance; and that it was agreed that the navy department should have a lien on the vessel and all materials provided for fulfilling such contract for the advances by the government, and that such vessel was not completed when the warrants of attachment were issued.
The referee also found, as matter of law, that the allowance of compensation for the use of machines in doing the work in question did not affect the lien of the plaintiff;
p. 31I. A new trial should be granted on the ground that it was incumbent on the plaintiff to prove the extent of his lien. He did not prove it to the amount allowed to him by the referee, and the court must, therefore, set aside the report, and order a new trial. (Phillips v. Wright, 5 Sandf. 362 .) HI. The judgment should, at all events, be reduced by the following: 1. The contracts provided for fortnightly credits. The last bill was rendered on the 19th of October, 1865, two days before the bond in suit was given, and contains three charges, all dated October 14. None of these were due when the lien proceedings were commenced, as is required by the act to create a lien.
that he had such lien, for work done according to the compensation agreed upon; that in the absence of any specific agreement to furnish tools or materials for the work, proof of the value of those used aided in presenting a mode of estimating its value; that the agreement with the United States government created no lien in favor of the latter, or if it did, it could not interfere with that of the plaintiff, being without possession ; and that there were no outstanding rights in favor of the United States to interfere with the plaintiff’s lien.
The referee therefore gave judgment for the plaintiff for the amount already mentioned, from which an appeal was taken and exceptions to such report filed.
Thomas A. Watson, for the appellants, defendants.
II. For materials which did not enter into the construction of the ship in question, the plaintiff had no lien. (Phillips v. Wright, 5 Sandf. 362 . Ames v. Dyer, 41 Maine Rep. 397 , 399, citing and following this decision. The Kearsarge, Ware, 2d ed. 556. Johnson v. Steamboat Sandusky, 5 Wend. 510 -12. Crooke v. Slack, 20 id. 177.) Nor for use of the plaintiff’s fixtures in his machine shop. (The Kearsarge, Ware, 2d ed. 556. Nor for the patterns and the work upon them. (Ames v. Dyer, 41 Maine Rep. 399 .
p. 322. The charges for boiler plate and boiler work on the Maria should have been excluded. The plaintiff introduced as his own evidence, the original bill containing memoranda of Perine’s deceased agent, made at the time -of receiving the bills; the defendants were, therefore, entitled to the effect of the. whole writing. IV. The act on which the alleged lien depends, is contrary to the constitution of the United States, and is utterly void. . 1. As regards maritime contracts, this cannot be denied. (The Ad Sines, 4 Wallace.) 2. The provisions giving a lien to builders are so incorporated with those concerning maritime contracts, that a separation is impossible, and the whole statute is void. V. There are no words in the statute evidencing any intent to subject the government to the operation of this remedy, or according a lien in any case affecting the government. (Smithett v. Blythe, 1 Barn. & Adol. 509.) 1. The government is never bound by a statute, unless by express words. Especially is this the case where the remedies of the government are concerned. (Lambert v. Taylor, 4 B. & C. 152. Petersdorff’s Abr. title Prerog. vol. 18, p. 703.) VI. The plaintiff’s claim was not, at any time, a subsisting lien on the Triana, pursuant to the act of 1862. 1. The “lien” so called, given by this state collection law, was not a special property or interest in the vessel. Its whole form and pressure consists of a remedy to procure satisfaction by seizure and sale. (The Globe, 2 Blatch. 433, 434, n.) It*is wholly and solely a judicial remedy, ( 40 Maine Rep. 392 ,) superior to that of ordinary creditors. The title of the act shows that, as well as its positive provisions. A repeal of it would impair nothing but a remedy. ( 35 Maine Rep. 74 .) “ Where the title creates the proceeding * the right and remedy remain unseparated * *. In the former class may be placed proceedings for the collection of demands against ships and vessels * * which are entirely creatures of the statute by which the right and
p. 33remedy are made inseparable.” (1 Code B. 112, 113, Barculo, J.) A right to have money raised out of a thing, is never held to be an interest in it. (Re Hughes, 33 Law Jour. Chancery, 727.) 2. This lien cannot “subsist,” cannot “ entitle to a warrant” (§ 7 of the act,) when its whole essence—the. right of action—is a nullity. “ There can be no civil right where there is no remedy.” (Bank of U. S. v. Owens, 2 Peters, 539.) Ubi nullum remedium, nullum jus, is a maxim. (Gateward’s Case, 5th resolution, 6 Coke R. 60 a: Plowd. Com. fol. 11.) “It is a mockery to talk of existing rights, without applying corresponding remedies.” (Fowler v. Lindsay, 3 Dallas, 413.) 3. The terms of the contract of the United States, (omitting the stipulation for a lien,) gave the government a jus ad rem, the mere executory right, not amounting to an interest; the specific ship might be called for and must be delivered. (Andrews v. Durant, 11 N. Y. Rey. 41, 42, 47, 51.) The additional stipulation for a “lien” to the United States, therefore, gave the government an additional right. If this right was a right in re—the general property, title, or ownership—then there is no question but that the plaintiff had no lien, since he would have no remedy to enforce it against the United States. The United States cannot be sued. (2 Andrews’ Opinions of the Attorneys General, 668.) Thus, mariners have no lien against the United States. (DeMoiety v. The South Carolina, Bee’s Adm. R. 422.) Nor . salvors. (The Comus, 2 Dodson, 464. The Thomas A. Scott, 10 Law Times, N. S. 726. The Schr. Merchant, Marvin’s Wreck and Salvage, § 222.) Nor horse feeders. (U. S. v. Barney, 3 Hall’s Am. Law Jaur. 130.) Nor material men. (Briggs v. Light Boat, 11 Allen, 248 .) 4. If it was a mere lien in the weakest sense of the word— a jus in re, a special property—the same effect will follow, for “ a lien is a right to hold.” (4 Camp. 291 , n.p. 1.) Lord Stowell so held in the case of a mail packet. (The Lord
p. 34Hobart, 2 Dob. 103.) “ If the right itself were a lien, the government could follow the property when disposed of to others, and reclaim it.” (Storm v. Waddell, 2 Sandf. Ch. 528 .) “If it were otherwise, what dreadful consequences would not result. * * * A ship carpenter might libel public ships.” (U. S. v. Barney, 3 Hall’s Am. Law Jour. 103.) So of the U. S. lien for duties. (Harris v. Dennie, 3 Peters, 298.) The last case is not evaded by referring to the statute giving the lien on imported goods. The source of the lien is utterly immaterial; if the United States has a lien, a state law can give no right of remedy against the United States. The absence of a naval officer in possession for the United States is of equal insignificance. Ferine was “ part of the naval forces of the United States.” (See extract from United States laws at end of the contract.)' The United States inspector was on board exercising arbitrary power and entire control. The state officers could not have enforced the lien remedy without ejecting both. They were in actual manual prehension of the vessel. The United States could not itself hold ; some other hand must hold for them; and Ferine, under this contract, had, at least, “a concurrent and mixed possession for the joint benefit of the” builder “ and the United States.” (Conrad v. Pacific Ins. Co., 6 Peters, 262.) VIL. Although the lien given by the statute is not created by agreement, yet it may be waived by the beneficiary, like any other statutory benefit. ( 9 N. Y. Rep. 333 , 334. 3 id. 300.) But no effective sense can be given to the stipulations for a lien in the contract, unless it is held to give some useful, substantial interest, not divestible by Ferine and his material men, or at their mercy. It was inconsistent with the lien of the latter. The plaintiff contracted with notice; he thereby waived his lien. 1. The penalty for delay by Ferine to fulfill his contract was such as to exclude the idea of lien. (U. S. v. Barney, 3 Hall’s Am. Law Journ. 129.) 2. The right of the United States to take the vessel,
p. 35I. A contract for building a vessel and for furnishing work and materials therefor, is now conclusively settled not to be a maritime contract, but to be entirely subject to state laws, and to the jurisdiction of the state courts. (People ex rel. Ferry Co. v. Beers, 20 How. U. S. 393. Roach v. Chapman, 22 id. 129. The St. Lawrence, 1 Black, U. S. Rep. 531. II. The defendant, Ferine, up to the time of the execution of both of the bonds in suit, was the sole owner of the Triana, and in sole possession of her. Under such .an ex-ecutory contract as that with the navy department, the builder is owner until the vessel be delivered and accepted. (Andrews v. Durant, 1 Kern. 35. Phillips v. Wright, 5 Sandf. 342 359. Law v. Austin, 20 N. Y. Rep. 181 .) IH. Mr. Ferine being sole owner and in possession of the vessel, and the vessel being entirely subject to our state laws down to the time of the execution of the bonds in suit, Ferine’s executory contract with the government was no obstruction, either to the acquisition or to the enforcement of the plaintiff’s lien. (Briggs v. Light Boat, 7 Allen, 287 . Same v. Same, 11 id. 157. The Revenue Cutter No. 1, 21 Law Rep. 281 ) 1. Until the United States government became owner, or came into possession of the vessel, there was no possibility of any interference with, or obstruction to, the enforcment of our state laws. . 2. The only immunity the government enjoys is, (a.) An exemption from direct suit, (b.) Froperty cannot be' taken from its possession, so that it would be compelled to come into court and defend it.
oust Ferine, and finish her, rendered it impossible for the plaintiff to have a lien. He could not sell, for a sale would bring delay, and delay forfeited the vessel. The respondent contracted to finish the engine; that means, not cause her forfeiture.
Addison Brown, for the respondent, plaintiff.
p. 363. All the cases relied on by the defendant, are cases ■where the property was at the time either in thetpublic service, or in the exclusive possession of the government; neither of which exists in this case. In such cases, the difficulty consists in enforcing the lien after property has come into the government’s possession. The whole subject is discussed in an exhaustive opinion In Briggs v. Light Boat, ( 11 Allen, 248 .) By this case, and in the same case in 7 Allen, 287 , it is held, that the lien is acquired in the ordinary manner, but that after delivery to the government, its immunity from suit alone prevents the enforcement of the lien. 4. This immunity from suit is of course confined to the government itself, and cannot be invoked in a suit between private parties, to which the government is a total stranger. If any conflict between our lien and government rights was possible, the defendants might have left us to litigate that matter with the government. By executing the bonds in suit, they removed every possible relation or conflict -between the plaintiff and the government. 5. Whenever the government comes -into court to claim any rights, or the subject matter in litigation is already in court, the government enjoys no advantage over private parties; its rights are determined by the same -rules as those of other persons. (2 Spence’s Eq. 32, 33, 774. 1 Story on Const. § 1324. 9 Mass. Rep. 368 . In re Wilder, 3 Sunn. 308.) In case of forfeiture to the government,-the lien of seamen is good against the government, and will be preserved. (The St. Jago de Cuba, 9 Wheat. 409 .) The government must contribute to general average like private persons. (In re Wilder, 3 Sum. 308.) 6. In the present case, the government had no right to possession until completion or default, and was not, in fact, in possession; the sheriff took possession from- Perine under our warrants, and Perine as owner, regained possession of the vessel from us by giving- the bonds in suit. 7. The provision of the contract that the government
p. 37should have a “ lien” for their advances to Ferine does not affect our rights. This contract for a “ lien ” gave no present interest; possession is essential to the existence of a lien, except as given by statute. (Hammonds v. Barclay, 2 East, 235. Lander v. Clark, 1 Hall, 355 . Urquart v. McIver, 4 John. 112 . McFarland v. Wheeler, 26 Wend. 467 .) The provision for a “ lien” rested wholly in contract; to enforce it, the government must come into court, when the rights of all parties would be secured. It is, at most, a mere equitable mortgage. (People, &c. v. Beers, 20 How. U. S. 400.) Even if a valid existing “ lien ” of the government resulted from this contract, it was not exclusive of other liens. One lien is never exclusive of another as against the general owner. The giving of the bonds estops the defendants from all question of priority of liens, of the value of the vessel, or of its sufficiency to satisfy all liens against it. (Franklin v. Pendleton, 3 Sandf. 572 .) No authority or even dictum in favor of the defendant’s position can any where be found; all his cases are where the government had exclusive possession. 8. The act of congress has no bearing on this case. It relates to contracts for “supplies;” the building of this vessel was not “ supplies,” but belonged to a different department of the service, to wit, the construction department. Such acts are strictly construed. The act is clearly disciplinary in intent, enacted, for the purpose of subjecting to summary military discipline, the persons of contractors for supplies for any frauds or irregularities committed by them. It has no relation to the civil rights of other parties. It don’t make the contractor’s property the government’s property, nor his possession, the government’s possession. The question of possession is one of fact. All the evidence shows exclusive possession in Ferine. {See second point.) The contract expressly postpones delivery to the government until completion or default; whatever right the government might have had under any general law, the contract governs this particular case
p. 38and recognizes no possession in the government, till completion or default. IV. The amount of the lien as allowed by the referee, in his report, to wit, $11,914.16, was fully proved by the evidence to have been a debt contracted by Perine, the builder, “for work done and materials furnished toward the building and equipping” of the Triana. 1. Every dollar was contracted and spent upon this vessel:, and on no other. The evidence offered by the defendant to show that a small portion went into the Maria, was incompetent, and of no force whatever; at all events, if sufficient to raise an issue on the testimony, there is no reason to disturb the referee’s finding on that question of fact. . 2. The principle decided in Phillips v. Wright, ( 5 Sandf. 362 ,) and kindred cases, was that the words “ furnished' for” the vessel, in the statute, mean not merely designed for but applied towards the building of the vessel; hence, if lumber sold for the vessel were, by the builder, diverted to another purpose, no lien arose in favor of the vendor. This ■ principle has no application to this case. 3. The defendants’ proposed distinction between the machine “work” and the manual “work” of the plaintiff’s laborers, when the whole was alike “work” furnished towards building and equipping this vessel, is altogether fanciful, and has no support in the words of the statute, in reason or from authority. . The form of the contract with the plaintiff was just, and simply gives the details of the mode of computing the debt contracted, instead of contracting for one gross sum. In the case of the Kearsarge, (Ware, 549,) the “augurs” were disallowed because the whole cost of the augurs themselves was charged; we don’t charge the value of the machines. ' 4. Whatever work is done, or articles used or consumed, or expense incurred in and about the work of the vessel, is , a proper lien—all these are elements in arriving at the ultimate cost of building the.vessel. Thus freight, insurance.
p. 39and cartage of materials, were held to be lienable, as elments of cost. (Kearsarge, Ware, 549.) Use of derricks. (Id.) Paint, brushes, oil, &c. consumed. (Franklin v. Pendleton, 3 Seld. 508.) This principle covers alike freight, cartage, “ small stores ” consumed in doing the work, charges in the work on board the vessel after it is once done, or while doing, and every expense which is an ingredient in the cost of the final completion of the vessel. 5. The special items which the defendants sought to except as not lienable, are all covered by the plaintiff’s evidence.
Any claim of the United States government on the vessel in question in this case for advances made on account of its price, did not affect whatever. lien the plaintiff had for his claim on her, so far as the bonds in suit are concerned. The defendants are liable on those bonds for any claim of the plaintiff that was a lien on such vessel, whether it could have been enforced against her or not. And even if the United States government had a lien, and it was an obstacle to the enforcement of the plaintiff’s lien, the defendants have waived all objection by executing the bonds in question to procure a discharge of the attachments. (Franklin v. Pendleton, 3 Sandf. 572 .) Such lien of the government could be discharged at any time, and the plaintiff be allowed to enforce his. Any claim on the part of the government would be an obstacle, solely by reason of the impossibility of suing the government, which could only be necessary in case the vessel were in the public service or in the exclusive possession of the government. (Briggs v. Light Boat, 7 Allen, 287 . S. C. 11 id. 157.) Whenever the government undertakes to recover possession by suit, parties who are on the defensive may use all their rights. (1 Story on Const. § 1324: 2 Spence Eq. 32, 33, 33, 174. In re Wilder, 3 Sum. 308.) The lien of wages, (The Jago de Cuba, 9 Wheat. 409 ,) and of a claim of general average may, (In re Wilder, ubi sup.) be
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enforced, against the government. In this case, the government had no right of possession under the contract until completion, or default. The mere covenant for a lien, in the contract, was ineffectual, as all liens, without possession are, when not created by statute. (McFarland v. Wheeler, 26 Wend. 467 . Urquart v. McIver, 4 John. 112 . Lander v. Clark, 1 Hall, 355 . Hammonds v. Barclay, 2 East, 235.) Such a contract for a lien creates only an equitable hypothecation, (People v. Beers, 20 How. U. S. 400.) The act of congress of July, 1862, which puts contractors for supplies under the same military control and discipline as the land and naval forces of the United States, is not applicable to vessels or their appurtenances, so as to put such vessel, or indeed the supplies themselves, under the control of the United States officers. Under such a contract as that in question, there is no transfer of ownership until the vessel is delivered and accepted. (Andrews v. Durant., 11 N. Y. Rep. 35 . Phillips v. Wright, 5 Sandf. 342 , 359. Law v. Austin, 20 N. Y. Rep. 181 .) The contract itself provides for the delivery and acceptance of the vessel, and the right of the government to take possession on default and finish the work, implying that until that time, the possession and ownership continued in the defendant Ferine.
It is fully settled that a contract for building a vessel, or furnishing materials, or doing work therefor, is no more a maritime contract, so far as a lien therefor may be created on such vessel by state laws and enforced by state courts, than building a house or doing any work upon any article for which a lien may attach to the subject of such work. People, &c. v. Beers, 20 How. U. S. 400. Roach v. Chapman, 22 id. 129. The St. Lawrence, 1 Black. U. S. 531.)
The mode of measuring the price of the articles, which entered into the composition of the engine, by charging by the hour for the use of machinery in the plaintiff’s workshop to fit such articles for their place in the engine, was perfectly legitimate. It was not work done on the engine or the vessel, but it was an expenditure for changing raw or
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rough materials into finished parts of the engine, and entered into their price, as much as if they had been made by any other manufacturer who should estimate their value by including the cost of such work therein. Besides, the statute includes work done “ towards ” the building, &c. as well as upon the vessel or any of its parts or appurtenances. So, also, the making of the moulds and templets or patterns was a necessary expense and labor in order to prepare the castings therefrom, and there was no evidence that they were of any use or value for any other purpose, after being so used for such vessel.
I do not find any evidence that any part of the work or materials allowed for, were for another vessel, (The Maria.) The only witness who enumerated the work done to such other vessel, did not include a man-hole plate in it, which he did in that done for the Triana, which was charged for in the bills rendered. If there was any conflict of testimony it was disposed of by the referee.
The plaintiff was entitled to a lien for the value of every thing necessarily consumed and for every expenditure necessarily incurred, in completing the work performed by him, and is not confined to the mere work done upon parts of the vessel or materials which remain as part of it. (Pendleton v. Franklin, 7 N. Y. Rep. 508 . The Kearsarge, Ware, 2d ed. 549, 556.) The use of the preposition “towards” as well as “ for,” in the statute, shows the intention of the .framers to include all materials consumed, as well as those entering into the composition of the vessel or any of its appurtenances.
There are no charges in the accounts rendered, for similar materials or parts, twice furnished. The sheet iron rejected for the conduit or blower channels, was used for man-hole plates. The plaintiff had a right to claim for the same work done twice, if not caused by his fault.
The judgment should be affirmed, with costs."
Cases cited
- Johnson v. Steam-Boat Sandusky 5 Wend. 510 p. 31
- Phillips v. Wright 5 Sandf. 342 at 359 p. 35, p. 40
- The St. Jago de Cuba 9 Wheat. 409 p. 36, p. 39
- McFarland v. Wheeler 26 Wend. 467 p. 37, p. 40
- Franklin v. Pendleton 3 Sandf. 572 p. 37, p. 39