255 F. 875 | 9th Cir. | 1919
(after stating the facts as above).
The action of the court respecting the bill of sale and the launching accident were excepted to by the defendants and have been duly assigned as error. In so far as concerns the former, the argument of the plaintiffs in error is that the construction contract did not require of them such an instrument, but that the plaintiff, having demanded and accepted it, is bound by all of the terms and conditions thereof. The record shows that the bill of sale was signed and acknowledged on behalf of the shipbuilding company January 10, 1918, and that on the same day the plaintiff, through his duly appointed agent, delivered to the defendants this communication:
“Seattle, Washington, Jan. 10,- 1918.
“To Andrew Peterson and to Aberdeen Shipbuilding Company, Successor to Andrew Peterson, Aberdeen, Wash. — Gentlemen:
“The undersigned, purchaser under that certain contract' made November 25, 1916, between Andrew Peterson and the undersigned purchaser for the construction of one twin-screw wooden auxiliary schooner, hereby tenders to you payment of the sum of $37,000, being the final balance due on said vessel, and offers to take possession of her; and you are hereby notified that by so doing the undersigned does not waive, but expressly insists upon, his right to claim the liquidated damages of $100 per day in accordance with paragraph 13 of said contract, and the undersigned hereby gives you notice that he claims and demands the sum of $20,859.S0 for liquidated damages for delay of 179 days in the delivery of said vessel beyond the 15th day of July, 1917, in accordance with said paragraph 13 of said contract; and this payment is made without waiver of or prejudice to said claim, and which payment is made under and in pursuance of paragraph 12 of said contract.
“G. Noots,
“By Oh. Jolivet, His Agent.”
The bill of sale which accompanied the delivery of the vessel is as follows:
“Know all men by these presents, that Aberdeen Shipbuilding Company, a corporation of Aberdeen, Washington, hereinafter called the grantor, for and in consideration of the sum of one ($1.00) dollar, lawful money of the United States of America, the receipt whereof is hereby acknowledged, and in consideration of the acceptance of this instrument by G. Noots, represented by Oh. Jolivet, hereinafter called the grantee, in complete fulfillment, satisfaction, and discharge of all the terms and conditions, on the part of the builder to be performed, of that certain contract made on the 25th day of November, A. D. 1916, by and between Andrew Peterson, shipbuilder, of Aberdeen, Washington, and G. Noots, represented by Ohas. Jolivet, for the construction of one twin-screw wooden auxiliary schooner, which contract was by the said Andrew Peterson duly assigned to Aberdeen Shipbuilding Company, a corporation, does herewith grant, bargain, sell, transfer, and set over unto the said grantee all its right, title, claim, and interest in and to that certain one twin-screw wooden auxiliary schooner designated as ‘Suzanne,’ now lying in the waters of Grays Harbor, in the county of Grays Harbor, state of Washington, together with all tackle, apparel, furniture, and equipment of said vessel. The said grantor does hereby covenant to and with the said grantee that said vessel is free from all liens and incumbrances, and that all bills for labor and materials which have gone into and have been made a part of said vessel have been duly and fully paid. The said grantee by the acceptance of this instrument does take possession of said vessel in accordance with the purport of this instrument.”
“That said schooner shall at all times be the property of the purchaser in ali si ages of construction and that all material purchased and delivered in the yard for it or appropriated to the construction of it shall become the property of the purchaser by such delivery and appropriation, subject to a lien by the builder for any unpaid installment of the purchase price.”
In view of those provisions of the contract, the payment by the purchaser of the balance due from him perfected his title to the vessel, and the bill of sale was therefore without effect, as well as without consi dcral ion.
“if prompt delivery of said schooner is prevented by ‘force xnajouro,’ then the time for delivery oE said schooner shall be extended correspondingly. The term ‘force inajeuro’ shall mean acts of God, strikes, lockouts (reasonably justified) or other industrial disturbances, wary blockades, insurrections, epidemics, landslides, lightning, earthquakes, arrest and restraints of rulers and people, explosions, fires, floods, and other like causes. No delay in the delivery of the vessel will be justified under the term ‘force inajeuro,’ excepting so Ear as the builder shall have notified the purchaser in writing at the beginning of such delay and the particulars thereof and at the termination thereof stating the duration thereof.”
Waiving the question as to whether the actual knowledge of the agent of the purchaser should be held to take the place of the written notice the conlract declared should be given by the builder to the purchaser, we think the launching accident cannot be properly regarded as coming within the words “other like causes,” added to the specifically described acts declared to operate as an extension of the prescribed time of delivery, for the reason that the parties specifically provided in the contract for insurance against any and all damage arising from the launching of the vessel, and specifically provided, in effect, that the builder should bear all charges for such insurance.
It is further contended by the appellants that the delay in the completion and delivery of the vessel was due to a delay in the delivery of the engines therefor, and that for the latter delay Noots was responsible. We do not so understand the contract of the parties. The construction contract in its fourteenth subdivision expressly recited the fact that Noots, therein designated as “purchaser,” had made a contract with the builders of the Skandia engine for the engines required for the schooner contracted for, and had paid thereon $9,-120, which contract lie assigned to Peterson, designated in the con
We find in the latter contract not only no guaranty by Noots of the delivery by the Hansen Company of the engines within the time specified in the contract between him and that company, but no provision even tending to show that any of the parties had any such understanding. On the contrary, subdivision 9 of the construction contract expressly declares that—
“The builder shall take from the manufacturer of the Skandia engines the usual guaranty as to material, workmanship and fuel consumption, which shall run in favor of the builder and his assigns. Such guaranty shall be by the builder assigned and delivered to the purchaser.”
The clause just quoted is quite inconsistent with the theory that Noots guaranteed the delivery of the engines at any specified time, or at all; indeed, any more than that he guaranteed the material of which they were' constructed, or their workmanship or fuel consumption.
“13. It is agreed between the parties hereto that if said schooner shall not be ready for delivery on July 15, 1917, and shall not be delivered on that date, unless by causes within the terms of this contract and delivery of the engines by the J. H. Hansen Company on the 7th of June, 1917, as defined by their contract, that the builder shall pay and will pay to the purchaser the sum of one hundred ($100.09) dollars per day for each and every day that such delivery shall be delayed beyond July 15, 1917, or beyond such postponed date of delivery as may be fixed by and within the terms of this contract, as liquidated damages for the loss of the use of this said schooner, and if the said builder shall deliver the said schooner before the 15th day of July, 1917, the purchaser will pay to the builder the sum of one hundred ($100.00) dollars per day for each and every day elapsing between the date of delivery and the said July 15,1917.”
It is insisted that the true and only meaning of the foregoing paragraph is that, if the defendants should fail to deliver the vessel by July 15, 1917, they would pay the purchaser $100 for each and every day that such delivery should be delayed beyond that specified day, unless such failure was the result of some act falling-within the terms of the construction contract, “or by failure to receive delivery of the engines on June 7, .1917.” Neither the clause last quoted nor anything of like effect is found in the construction contract, and it need hardly be said that courts have no authority to make contracts for parties. The agreement of these parties was that the delivery of the vessel July 15, 1917, might be excused and the time extended “by causes within the terms of this contract and delivery of the engines by the J. H. Hansen Company on the 7th of June, 1917, as defined by their contract.” The words “and delivery” in tire clause last quoted may have been intended for “nondelivery,” in which event provision would
The points made on behalf of the cross-plaintiff in error have been carefully considered, and we are of the opinion that they are without substantial merit.
The judgment is affirmed.
