235 F. 595 | D. Me. | 1916
On September 18, 1914, the steamer Gurnet was seized upon this libel to enforce a maritime lien. On November 12, 1914, she was sold at a marshal’s sale by virtue of an interlocutory order of sale, and the proceeds of the sale were paid into the registry of this court. On the day of filing the libel, Joseph C. Noyes intervened, by petition, to enforce a lien for labor and materials furnished for installing the boiler and machinery of the steamer. It is alleged that this lien is a construction lien, and arises under section 8 of chapter 93 of the Revised Statutes of Maine, as follows:
“Sec. 8. Whoever furnishes labor or materials for building a vessel, has a lien on it therefor, which may be enforced by attachment thereof, within four days after it is launched; but if the labor and materials have been so furnished by virtue of a contract not fully completed at the time of the launching of the vessel, the lien may.be enforced within four days after such contract has been completed. * * * ”
The proofs show that the labor and materials were furnished by the intervener, Noyes, for the installation of a pinch wheel, an appliance for turning the engine over, and a spring bearing.
“I considered that we had entered into an agreement with him [Noyes], and that he was to complete the work unless there was some unusual proceeding ; hut I had every confidence in Mr. Noyes doing the work right.”
Without further reciting testimony, after a full examination of the proofs, I am satisfied that the contract was one relating to the construction of the vessel; that within the meaning of the state statute, the labor and materials were furnished for “building a vessel” ; that the pinch wheel and spring bearing were necessary parts .of the steamer, and were furnished upon the order of the owner of the steamer, by its superintendent of construction, under one continuing contract; and the fact that some time intervened between the time the steamer was put in operation and the time when the pinch wheel and spring bearing were furnished does not affect the validity or priority of the lien.
The jurisdiction of the court over the lien is fixed by the fact that the steamer was seized and sold under admiralty proceedings; the court thereby acquiring jurisdiction over the remnants of the sale in the registry. It has long been well settled in the admiralty courts, that, where proceeds are rightfully in the possession and custody of the admiralty, it .is an inherent incident to the jurisdiction of the court to entertain supplemental suits by the parties in interest to ascertain to whom the proceeds rightfully belong; and, although the state statutes prescribing liens prescribe also the forms of proceedings, still the federal courts proceed to give relief in admiralty, sometimes by sum
Under the practice of maritime courts I can have no doubt that this court has the right to distribute this fund.
Under the. proofs, I think the lien established is of the positive character I have above indicated; but, even if the testimony disclosed only an inchoate lien, it would still be the duty of the court to give effect to such lien, and to provide means for enforcing it. In the Metropolitan Steamship Case (C. C.) 166 Fed. 782, 785, to which I have referred, judge Putnam says:
“If, at the time the bills before us were filed, there was resting on those steamers, or either of them, an inchoate lien of any character, it is the duty of this court to give it fruition.”
Under the practice of the admiralty courts, whatever right Noyes had in the steamer at the time possession was taken under the process issued by this court in this proceeding, it is the duty of the court to protect and enforce such right, and “to give such remedy as the equity of the case might advise.”
It is necessary here to carefully examine the proofs in relation to the receipt of the notes. Noyes testifies that, on July 28th, Brown, the manager of the company owning the steamer, gave him the four notes in question, and one of the notes, at least, was on four months’ time; that he took the notes to the Canal Bank, and he thinks they were placed to his credit, but he does not think he drew against them. As a result of conference with his counsel, Noyes obtained the notes from the bank within two or three days. He went to Brown’s office again, and handed him the four notes, and stated that he could not use them, as they were not acceptable to the bank, so he returned them to Brown. Noyes says that Brown made no objection to the return of the notes, and did not give question to Noyes’ right to do so, and that the notes have been in Brown’s possession, so far as he knows, ever since that time, and were in the possession of the trustee in bankruptcy at the time of the hearing. The notes did not cover his account in full, and, when he returned them, Brown did not return his account. Noyes testifies clearly that “his object in taking the notes was simply to help him out until the steamboat company could raise money”; that he thought, at the time of taking the notes, he had a maritime lien, but he did-not know the difference between a construction lien and a maritime lien; that in taking the dotes he did not intend to waive or discharge his lien, and he did not understand that the giving or taking of notes would affect his lien, but the bank asked him to look into the question of lien; and he then consulted his counsel; that soon after he returned the notes he asked Brown for money, Captain Randall being present, and told Brown that he had been informed by his counsel that his lien would continue four Hays after the completion of his work, and that things would havé to be settled up; that both Brown and Randall stated that they did not want to do anything to hurt him; that he had done the work in a satisfactory way and should have his pay; that, a few days after he returned the notes, he told them that he had not completed his work, and should want to take action within four days after he had completed it; that they asked him to hold off on the work for a few days, to see if they could not make some arrangement to raise the money. In his testimony Captain Randall does not contradict Noyes on any material matter. Brown’s evidence is contradictory to Captain Randall’s in many important particulars; it is not necessary to discuss that testimony, or that of other witnesses, in detail. On all the proofs, I am satisfied
In The Helen M. Pierce, Fed. Cas. No. 6,332, Judge Fox, in this district, refers to Carter v. The Byzantium, Fed. Cas. No. 2,473, in which, in speaking of the rule of Maine and Massachusetts courts, Judge Clifford says:
“It is merely a presumption of fact, and may be controlled by circumstances indicating a contrary intention.”
In The Alabama (C. C.) 22 Fed. 449, it was held that, by the principles of the maritime law, a lien is not lost by the acceptance of notes, unless the claimant can show that the lienholder agreed to receive the notes in lieu of the original claim. In The L. B. X (D. C.) 93 Fed. 233, 239, in commenting upon a case where it is claimed that taking a note had waived a lien in the admiralty court, District Judge Philips said:
“The law gave the lien absolutely, and therefore it devolved upon the claimant to show affirmatively that this lien was waived as a part of the contract. * * * ‘The notes being unpaid, he may return them, and enforce his lien.’ ” —citing The Kimball, 3 Wall. 37, 18 L. Ed. 50.
In Robins Dry Dock & Repair Co. v. Chesbrough, 216 Fed. 121, 125, 132 C. C. A. 365, 369, in speaking for the Court of Appeals for this Circuit, Judge Putnam said:
“It is settled, however, by sound reason, and by long practice and acquiescence, that any debt to which a lien or a special ground of relief is attached is not discharged, so far as the lien or special ground of relief is concerned, by a renewal, or any number of" renewals, unless there is something of a peculiar nature which showed that what was done was intended to absolutely merge the original debt. * * * Independently of the question of the effect of taking a promissory note, which in Massachusetts and Maine is regarded as a discharge of the original debt prima facie, while in New York it is not regarded as such a discharge, the rule is universally applicable, for example, that the taking of a new obligation does not necessarily discharge the original debt without an especial intention on the part of the parties that it should do so.”
See Meyer v. Tupper, 1 Black, 522, 525, 17 L. Ed. 180; Ramsey v. Allegre, 12 Wheat. 611, 6 L. Ed. 746; The Winnebago, 141 Fed. 945, 946, 73 C. C. A. 295; The Pioneer (D. C.) 53 Fed. 279; Moore v. Newbury, Fed. Cas. No. 9,772; The Sarah J. Weed, Fed. Cas. No. 12,350; Page v. Hubbard, Fed. Cas. No. 10,663; Hudson v. Bradley, Fed. Cas. No. 6,833; The Napoleon, Fed. Cas. No. 10,011. The Eclipse, Fed. Cas. No. 4,268.
“In my opinion, Coombs did not intend to release and discharge his security by thus accepting Maddocks’ note; and it is certain he would never have done it, if fully advised of Maddocks’ condition.”
There is no necessity of reviewing in detail the testimony touching the claims of the mortgagee. Under the proofs, and under the decisions of the federal courts, it is clear that tire construction lien of Noyes takes priority over the mortgage, as it does over the trustee in bankruptcy. American Trust Co. v. Fletcher Co., 173 Fed. 471, 479, 97 C. C. A. 477; The Kiersage, Fed. Cas. No. 7,762; The St. Joseph, Fed. Cas. No. The Star 9 Fed. 524.
I find, then, that the work done by the intervener, Noyes, was done as a part of the work growing out of the construction of the steamer Gurnet; that the pinch wheel and spring bearing were furnished on the order given by the superintendent of construction of the steamship company, soon after the work of installation began; that the fact that some time intervened between the steamer’s being put in operation and the time the pinch wheel was installed and the spring bearing delivered on board the steamer does not affect the validity or priority of the lien; that the intervener’s construction lien was not rendered invalid by the taking.of the notes; that the notes were not received with any intent of discharging the lien; that the intervener’s lien takes priority over mortgages and also the rights of the trustee in bankruptcy.
There must, then, be a decree for the intervener, Joseph C. Noyes, for the sum of $1,597.26, with interest to March 1, 1916, with costs, and that the claim constituted a lien upon the steamer Gurnet at the time she was seized, by the marshal, by virtue of the process of this court, issued in this case, and that such lien is entitled to priority over the rights of the trustee in bankruptcy and over the mortgage. Let such a decree be drawn and presented.