Franklin v. Pendleton — 5 N.Y. Super. Ct. 572

Majority

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Franklin and others v. Pendleton and others.

Headnote

In a suit on a bond, executed to obtain the discharge of a vessel, under the act for attaching ships and vessels, the defendants cannot set up irregularities or defects in the affidavit of the obligee upon which he became an attaching creditor. The question is not on the sufficiency of the affidavit, but on the validity of the claim and its existence as a lien.

It is no objection to such a bond, that the condition is, to pay all such claims as have been exhibited, and which shall be established to have been subsisting liens ; omitting the words “ at the time of exhibiting the same respectively,” contained in the statutory provision for the bond.

Such a bond is not taken by the officer, colore officii, it not being to himself, or for his own interest or protection.

It is not necessary that such a bond should appear on its face to have been taken by or before the officer who issued the attachment.

An old steamboat, of three hundred and forty tons, was fitted up for a theatre, and used as such, at different river ports. After being thus fitted a new enrolment was taken out. Held, that she was liable to process under the act for the attachment of ships and vessels, in favor of one who furnished materials for repairing, fitting, and equipping her, although a part of the same were used for the fitting up of the theatre, as distinguished from the hull.

The recital in the bond of the issuing of the attachment, is sufficient evidence of that fact in an action against the obligors.

(Before Duer, Mason, and Campbell, J.J.)

March 14;

April 20, 1850.

Case subject to the opinion of the court. The cause was

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transferred from the supreme court, where it was tried before Edmonds, circuit judge, in March, 1847. The action was debt, on a bond executed by the defendants in June, 1845, to the plaintiffs, on the attachment of the steamboat Virginia, by them under the statute. The suit was prosecuted for the benefit of the plaintiff, G-. H. Franklin, whose demand against the vessel was for materials furnished to one Driggs, at his request, a» “ master, owner, or agent” towards the repairing, fitting, furnishing, or equipping the vessel. At the trial, Franklin’s application to the circuit judge, to become an attaching creditor, was produced, which stated the materials to have been furnished to the steamboat, the items being annexed; and the affidavit of the witness attached, stated that the debt was “for materials furnished to the said steamboat, to and for the use of the said vessel, at the port of New York.”

The bond executed by Pendleton as owner, and the other defendants as sureties, recited the seizure of the steamboat or vessel, by virtue of a warrant issued on the application of some of the obligees; and its condition was, to “ pay the amount of all such claims and demands as have been exhibited, which shall be established to have been subsisting liens upon the said vessel, pursuant to the provisions of the eighth chapter of the third part of the revised statutes.”

The defendants proved, that previous to Franklin’s dealing with the steamboat, she had been used as a planing mill at different wharves on the North river, and was then turned into a theatre, having one tier of boxes, a pit, a stage, and a saloon for refreshments. She was fitting for this purpose when Franklin’s materials were supplied, viz. in January, February, and March, 1845, and F. knew that such was the object of the repairs and refitment. That in January, 1845, the owner chartered the steamboat to Driggs and others for three years, to be converted into and used as a theatre, with the privilege of purchasing her at $4500. The materials used, were in part upon the hull and in part were for the fittings of the theatre.

The plaintiffs proved that the steamboat was enrolled in New York, April 23, 1845, W. S. Pendleton owner, and Driggs, master.. Previously, she had been enrolled in Philadelphia.

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Was built in Baltimore in 1837; her tonnage 340 tons. They also proved that about the first of June, 1845, she was at Troy, at the dock. Soon after she was on the ways at the dry dock in Hew York. The owner at that time resided in Philadelphia. The enrolment stated Driggs to have become the master on the 1st of April, 1845, and that Pendleton was the previous master.

JS. O. Benedict, for the plaintiffs.

W. B. Blwit, for the defendants.

The right of the plaintiff to recover in this cause is denied principally on three grounds.

I. It is alleged that the affidavit of the plaintiff, as an attaching creditor, presented to the judge who issued the warrant, is defective—that it does not state whether Driggs, at whose request the articles were furnished, was master, owner or consignee, but only that he was one or the other—that the articles are stated to have been furnished for the use of the vessel, and not for or towards the building, equipping or repairing &c., as required by the act; and that the facts and circumstance establishing the demand are not set forth.

It might be a sufficient answer to these objections, to say that they should have been presented to the officer before whom the bond was taken, on a motion to discharge the vessel from the claim of this plaintiff, and that the voluntary execution of the bond is a waiver of the alleged defect, and an admission that the plaintiff had complied with the requisites of the statute, so as to entitle him to the benefit of the bond.

But there is another and conclusive answer, and that is that the suit is now on the bond, which is executed in favor of the plaintiff, and is conditioned to pay all such claims as shall have been exhibited, which shall be established to have been subsisting liens on the vessel. That a claim was exhibited by this plaintiff is evidenced by the execution of the bond in his favor— and the only questions now are, what was the nature and amount of the claim, and was it a subsisting lien.

Admitting the affidavit to have been defective as alleged, the

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question now is not on the sufficiency of the affidavit, hut on the validity of the claim—and the plaintiff is not by reason of defects in the affidavit excused from any proofs, nor are the defendants shut out from any defence, affecting the merits of the action. The affidavit is a mere preliminary proceeding, and is rendered unimportant by the giving of the bond.

II. It is said that the bond is void on its face—that it is a bond taken colore officii—and is wanting in the essential requisites of the statutory bond which is required to be conditioned for the payment of all such claims as shall have been exhibited, and which shall be established to have been subsisting liens at the time of exlvibitmg the same respectmel/y, whereas the condition of the bond in question omits entirely all after the word “ Liens.”

The case of Ring v. Gibbs, ( 26 Wend. 502 ,) completely answers this objection. In the bond in that case, the same words were omitted as in the bond before us, and also the words, “ as shall have been .exhibited,” thus making it conditional, as was contended by the counsel, for the payment of all demands which should be established to have been subsisting liens at any time, whether the same had been exhibited to the officer or not. But the court of errors unanimously held that it was not a bond taken colore officii, for though taken by tke officer who issued the warrant, it was not a bond to himself, but was executed to and for the benefit of the parties suing out the warrant; and that the variance of the condition from the terms of the statute did not render the bond void.

Another objection was, that it did not appear by the recitals, that the bond was taken before the officer who issued the warrant. But the statute does not require that fact to be inserted in the bond or in any recital to it. Besides, it was voluntarily executed by the obligors, without notice to the plaintiff, and has accomplished, as the defendant intended it should, the release of the vessel. It would, therefore, be the height of injustice, to allow the defendants to avoid a security thus voluntarily given by themselves, and which the plaintiff is bound to accept, on the ground of technical defects or informalities, which they them

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selves have committed. They cannot get rid of their obligations by setting up their own negligence or fraud.

XU. The third objection is, that the steamboat Virginia was not a vessel, within the meaning of the statute.

She was a vessel of the burthen of three hundred tons and upwards, was enrolled and licensed for the coasting trade, and therefore a vessel of the description to which it has been expressly held that the act applies, (Walker v. Blackwell, 1 Wend. 551 ; Marcy v. Noyes, 5 Hill 35 .)

The fact that she had a theatre erected on her deck did not. render her less a vessel, or in any manner alter her character. She was to be enrployed, and was employed, in sailing from port to port, with the view of being profitable to her owners by theatrical exhibitions, instead of the usual mode of carrying freight or passengers; but she was as much a vessel, within the meaning of the act, when employed in the former as in the latter mode. The articles furnished by the plaintiff were ordered for the “ Steamboat Virginia,” and were charged to the “ Steamboat Virginia and the owners,” they were articles necessarily used in the repairing, fitting, furnishing or equipping the vessel, and the plaintiff is not responsible for the misapplication of any of them by the defendants to other purposes. It is proved, however, that the greater part of them were actually used upon the vessel, as distinguished from the theatre.

As to the objection that the plaintiff did not prove the relation in which Driggs stood, whether owner, master or agent, we are of opinion that there was sufficient evidence on that point to go to the jury, and that the non-suit prayed for on that ground was properly refused. The authority of Driggs, as master or agent, was however afterwards clearly proved by himself when he was • called as a witness for the defendant.

The same remark applies to several other exceptions taken to the ruling of the judge—such as 'the admission of proof of Driggs’s signature to the order for the articles furnished by the plaintiffs, and the refusal of the judge to nonsuit for want of sufficient evidence. Even if his decisions were in these respects erroneous, the objections were afterwards obviated by further testimony.

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The defendants also excepted to the decision of the judge allowing the bond to be read in evidence, and also to proof of the items of the plaintiff’s claim without previous proof of the preliminary proceedings on issuing the attachment, so as to show that the officer granting the warrant had jurisdiction. The obvious answer to this is, that the bond itself admitted in terms the issuing of the attachment, and is against these defendants conclusive evidence of the jurisdiction of the officer and of the regularity of those proceedings.

We think that none of the objections of the defendants were well taken, and that the plaintiff is entitled to. judgment on his verdict.

Judgment for the plaintiff.

Cases cited

Ring v. Gibbs 26 Wend. 502 N.Y. Sup. Ct. p. 575
Visger v. Ward 1 Wend. 551 N.Y. Sup. Ct. p. 576