127 F. 999 | W.D.N.Y. | 1904
This proceeding has been brought in personam to recover from her owners the sum of $1,929.83 for repairs and materials furnished to the excursion steamer Pearl at Day City, Mich., between April 28 and July 1, 1898. Evidence was offered by the respondents, and was admitted, to prove that on April 22, 1898, an agreement in writing was entered into between libelant and J oseph H. Rebstock and John Johnson, acting for the owners, to so rebuild the Pearl as to make her stanch, seaworthy, and fit for navigation. The character of the repairs is set forth in detail. The specifications enumerate many specific items of work and labor to be performed, and material to be furnished, to fulfill the contract, and to enable the Pearl to pass government inspection as a passenger steamer. The contract price agreed upon was $6,000, payable in installments within one year from July 1, 1898. The full amount was eventually paid, the last installment having been received more than a year after the date of the agreement. At the end of the agreement was a provision that the enumerated details of repair work for the vessel, and the materials to be furnished, were simply an outline thereof, and that the libelant was to perform “a proper and suitable job to put the vessel in first-class shape.” The libelant seeks to recover for extra repairs and material furnished, not for any of the work specified in the paper writing. The amended answer of the respondents refers to the written memorandum, and alleges that the libelant did not render the services therein enumerated in a workmanlike manner. This caused additional expendi
Accordingly the first point to be decided is whether the damages claimed to have been sustained by the' owners of the Pearl in consequence of libelant’s failure to perform the agreement of April 22d may be recouped where the libel filed seeks to recover compensation for extra services and materials furnished, and which were not expressly included in the terms of the written document. The libelant contends that the doctrine of set-off and recoupment cannot be applied, for the reason that recovery is demanded upon an independent claim, and having no connection with the óriginal arrangement to repair the vessel. The evidence, however, does not support this contention. The memorandum under which much of the work upon the vessel was performed expressly states that the variety of items of labor therein specified was only an outline of what the parties contemplated as actually necessary to be done. The written agreement imports the obvious intention for additional repairs to be made, other than such as were therein specifically stated. The extra repairs referred to in the libel were practically performed simultaneously with the repairs included in the original contract, and the entire work must be regarded as having been done pursuant to a written agreement, and an oral arrangement subsequent thereto, but which is contemplated by the written agreement itself, and which, with the writing, constitutes a single contract between the parties. For this reason, I am of the opinion that the recoupment pleaded is- not in the nature of an independent set-off. The cases cited by proctor for libelant do not1 appear to be authorities ■for holding that:damages sustained may not be recouped to reduce a claim in such a case as this.’ Stress is laid upon The Zouave, supra, which is clearly distinguishable. There- the contract was dated in September, 1883, and was in relation to a boiler which was put into the tug about one year afterwards! The' boiler ■' was accepted ¿fter thorough
Decree may accordingly be entered for libelant for $1,929.83, with costs, less the sum of $930, which sum may be applied in reduction of libelant’s damages.