Story v. Buffum

90 Mass. 35 | Mass. | 1864

Metcalf, J.

By the Gen. Sts. c. 151, § 13, this petitioner was required, in order to save his lien on the vessel, to file, in the office of the city clerk of Salem, a sworn statement, subscribed by him, “giving a just and true account of the demands claimed to be due to him, with all just credits,” and also “ the name of the owner of the vessel, if known.” But he has failed to comply with either of these requisitions. As to the amount of his claim and the just credits, the statement subscribed and filed by him was this: “ Due for services on said vessel, $4250. There should be allowed to the credit of the above account a large amount, which cannot be computed by the subscriber, for which David Buffum has paid or made himself responsible; the amount is not known to the subscriber.” Yet it appears from his own testimony, given at the trial, that he knew, when he subscribed the foregoing statement, that Buffum had paid more than $3200; and it appeared from other testimony that the exact sum that Buffum had paid was $3208.69. It is impossible, therefore, to regard the statement which the petitioner filed as a statement of all just credits. He was bound to give credit for $3200 at least.

We are also of opinion that the owner of the vessel was known to the petitioner, within the meaning of the statute requisition that he shall state the owner’s name, “ if known.” His statement was filed in the office of the city clerk on the 22d of July 1861. And he testified, on the trial, that he had heard and believed, when the work on the vessel was begun by him, that Buffum and Holland owned the vessel together; that they both had told him so ; that, before he filed his statement, he had heard that Buffum had become the sole owner, and believed that it was so when he filed his statement; that he knew that in some way the vessel had been transferred to Buffum, though he had no actual knowledge of the execution of any papers. And it is admitted by the petitioner’s counsel that, when he filed his statement, Buffum was in fact the sole owner of the vessel. The statute word “ known ” cannot be held to require further knowledge of the owner’s name than that which the petitioner had. Absolute knowledge can be had of very few things.

As these two defects in the petitioner’s statement are fatal to his claim, we have not considered the other objections to its sufficiency which were made at the argument.

Judgment on the verdict.