34 F. 399 | E.D. Pa. | 1888
In the years 1882 and 1883, the libelants, ship-chandlers in Boston, furnished the respondent at various times, (the last being
Were the libelants misled respecting the owner’s residence? This question has received careful attention. I have, however, not found anything to justify an affirmative answer. It must be borne in mind that the misleading, to be material, must have been in respect to this fact — the owner’s residence. The testimony of Mr. Atwood, of the libelant firm, shows that they were not so misled. They know that he had lived in Boston for many years, and were bound to know that this constituted Boston his place of residence. If they had not known this, and his residence, had been difficult of ascertainment and doubtful, the foreign registration and foreign flag might he appealed to as evidence on that point. As the residence, however, was known, they are unimportant. To one ignorant of the law they might mislead respecting the home port of the vessel, but the libelants cannot plead ignorance. Knowing that Warner resided in Boston, (or having the moans within reach of ascertaining this fact even,) they were bound to know that the home port of the vessel was there. It follows that no implied lien can exist for the supplies furnished in Boston.
It is urged, however, that the evidence shows an express lien. Aside from the question (raised and discussed) whether such a lien could bo created by parol, it is sufficient to say that I find no evidence of an express contract for a lien. Without such contract no express lion can exist. It is plain that there was no such contract. The libelant’s evidence show's that the subject was never alluded to by the parties. Mr. Atwood says the libelants charged th'e ship, intending to look to her; and that he believed that Warner so understood; though nothing was ever said between them on the subject. This is the ordinary foundation for an implied lien, where one may exist, nothing more. It has no tendency, even, to support the allegation of an express lien.
For the debt represented by the draft given Quimby & Co., there was a lien. The supplies were necessary, and were furnished in a foreign port, at the master’s instance. Taking- the draft did not affect the lion. The transfer of the indebtedness, transferred the lien. The latter was security simply for the debt, and as in all other instances it follows the debt to the transferee,