55 F. 422 | 2d Cir. | 1893
The libelant, John P. Hawking, a shipwright at City Island, in the state of New York, filed a lien on June 13, 1890, under the statute of that state, against the steam yacht Lurline, owned by the claimant, William B. Wetmore, for the sum of §476327, the amount, alleged to be due from said owner for the value of work and material furnished and services rendered to the yacht. Upon a libel brought to foreclose this Ken die district court for the southern district of New York adjudged that the libelant should recover against the yacht the sum of §378.27, with in forest from June 13, 1890, and costs. From that decree; this appeal was taken by She claimant.
In the latter part of Peptomber, or the early pari of October, 1889, ihe claimant look Ids yacht to Hawkins’ shipyard for repairs, and to be kept through the winter. Neither the amount nor the cost; of the repairs was then ascertained, but it was definitely agreed between the claimant and Hawkins that, if the repair bill was over §599 or «§600, nothing should be? charged for wintering, bat if the bill was not over §?099 a charge might be made. Boss, ihe captain of the yacht, remained in the claimant's servlet? until December, and gave instructions to Hawkins as to the nature o? the repairs. Daring the rest of the winter, and until «about April 25, 1890, the claimant had. no one in charge of the yacht. He was in. the west most of the winter, returned to New York several limes, saw the boat, and immediately after .April 11, 1890, paid the libelant Ms bill for labor and material to that date, amounting to §2,647.83, At this time the libelant told the claimant that there might be a bill of $50 or §60 more fox* additional work. Mr. Bell, the claimant’s new sailing master, took charge of the boat on April 25, 3890. She was launched within two weeks, and went on tier trial trip foi* a few hours, returning to City Point. From April 25th, to May 16th a bulkhead was put up in (he engine room, the engine-room companion way was made and fitted, the saloon floor was laid, the bottom and the forecastle were painted, and some jobbing work was done. The bill, in addition to the §300 for wintering, is for work and materials from April 11th to May 16th, which consist of 25 days’ joiner work, 21 days’ “carpentering,”
“I have made a most careful examination of the work which was done by yon. sinee April 12, and find that you have charged me for a large amount of work which I cannot allow, as I find 'that it was never done for the boat. The amount of these excessive charges is §191.30.”
He also objected to the $100 charge as unauthorized, and offered to pay $192.15 in settlement of the account. The answer to the libel was in accordance with the letter of August 12th, and furthermore alleged that the work was done in an unworkmanlike manner, and that the libelant failed to put in limber chains, which had been ordered, — a failure and neglect which resulted in great trouble to the claimant, and in an expense of $300, which sum the claimant sought to recoup against any sum of money due to the libelant. He was thus clearly informed, both before and after the suit was commenced, that the amount of the work which was done after April 11th was an important feature in the case. His only testimony upon this subject, in chief, was in the answer to a general question: “Did you do all the work mentioned in the bill of particulars?” “I did.” Upon cross-examination he testified that he was aboard tbe boat every day during the course of the repairs, and that he could not swear anything positively from his own knowledge, only that the work was done, but the number of days he could not swear to without refreshing his memory by the hooks. In reply to the question, “Can you swear to any of these items which are on this last bill rendered, of your own knowledge, which are specified in this lien?” he said, “I would have to refer to my books to tell by.” In reply to the question, “Yon can’t swear without reference to the books?” he said, “Ho.” The question had no reference to the $100 item. He further said that he based Ms knowledge that the work was done, and that the material charged was correct, from the books; and in reply to the question, “Without your books, you can’t swear to anything in this matter?” he said, “I can swear that the work was done, and material furnished; but to what extent, exactly, I couldn’t swear to.” He further testified that every night he put iu the time book the time, and the men’s names who did the work.
Bell, in behalf of the claimant, gave evidence that after April 25th but a small amount of work was done in Ms presence on the yacht, and that during the last eight or ten days there was nothing for the libelant to do upon the woodwork. In reply the libel-ant testified nothing in regard to the amount of the work, labor, and material after April 11th. He did say that he superintended the work on the vessel from the time she started until she was finished. It is to he presumed, though the books were not placed
In regard to recoupment, considerable testimony was given iu the disnict court that limber chains were not furnished, in accordance with the claimant’s order; that he was subjected to a large expense, in overhauling the bond to supply the omission. We concur with the district court that no suílicient foundation Is laid for this claim of damages. It is undoubtedly true that, the; claimant gave instructions that they were to be put In, but we arca sj.itIs,fled, that the libelant did not understand that he wax. to do this, work; otherwise, it would have been done, and changed for.
Nothing can be allowed by way of reduction, for damages for unworkmanlike painting in Hie forecastle, because neither the amount of chai part of the painting bill, nor the amount of the damage, appears in the testimony.
The decree of ihe district court is modified so that a decree should be entered for the libelant for $1.92.15, with interest from June 13, 1890, without coste in the district court. Costa are to be allowed to the claimant in (Ms court.
