20 Wis. 247 | Wis. | 1866
We adopt the doctrine of Andrews v. Durant, 11 N. Y., 35, and Low v. Austin, 20 N. Y., 181, in opposition to the modern English rule, and hold, in the absence of any specific and clear agreement to the contrary, that under a contract for the building of a vessel, no property vests in the person for whom it is agreed to be built, until it is finished and delivered. In this case there .was no special agreement by which the title was to vest in French and Miller, the parties for
The complaint avers that Boole was agerú of the vessel, and as such was authorized to purchase and did purchase and use the articles for which the lien is claimed. French and Miller, answering for the vessel as the present owners and the parties for whom she was built, deny that Boole was such agent, or that he had any authority whatever to contract the debt or incur the liability stated in the complaint. And for a further defense, they aver “ that the said vesselwas built by said Boole for them under a contract to furnish all the labor and materials used in her construction for an agreed ¡erice, the whole to be paid when said vessel was completed and delivered; that when it was completed and delivered, they paid to said Boole, the contractor, the whole sum agreed upon and more, without notice or suspicion of this claim or any claim for materials furnished in her construction; wherefore they demand judgment,” &c.
It is urged that the plaintiffs cannot succeed upon the grounds stated in the complaint, the issue upon Boole’s agency being found against them, and that the judgment must be reversed and the cause remanded for a new trial upon a complaint to be
It is suggested that had the plaintiffs done just what French and Miller have done, averred ownership or facts showing ownership in Boole, French and Miller might then have made some different answer; they might have set up a special agreement by which the title was to vest in them pari passu, as the work progressed and the advancements were made; and therefore a repleader should be awarded. This seems to me to be going to too great length. No inference of the existence of any such special agreement can be drawn from the case as it now appears. On the the contrary, the almost conclusive inference from the facts stated in the answer and proved at the trial is, that there was no such special agreement. 'Without its being shown, therefore, by affidavit or otherwise, that there was such an agreement, and that French and Miller were misled by the
By the Court. — Judgment affirmed.