93 F. 233 | W.D. Mo. | 1899
This is an action in admiralty for the enforcement of a maritime lien on the defendant stern-wheel boat, navigating the Missouri river in this district, for an alleged repairing of said boat by libelant with a 38 horse power gasoline engine, with necessary fixtures and appurtenances for operating same on said boat. One Henry Strutman, who claims to be the master and owner of said boat, interposed as claimant. The answer admits the furnishing of the engine and appurtenances by the libelant, but claims (1) that the engine, etc., was not for furnishings made, or repairs, for said boat, but the same was for the equipment of a vessel, either not yet completed, or, if completed, was simply a substitute for another engine on the vessel, and the new engine was not, therefore, a necessary repair within the purview of a maritime lien; and (2) that by special contract or
“But whatever is done to or about an existing ship has a direct reference to commerce arid navigation. A ship in esse as a maritime subject gives a maritime character to all transactions connected directly with it. The eases are distinguishable thus: One class founded upon contracts for repairing and rebuilding of vessels, all such contracts to be maritime, because they affect vessels in esse; the other class, founded upon contracts for the building of proposed vessels, hold such contracts to be nonmaritime, because they touch maritime subjects only by relation to proposed vessels, the future existence of which is contingent upon the performance of the terms of the contract in each case.” The Manhattan, 46 Fed. 797.
As said in The Eliza Ladd, 3 Sawy. 519, 523, Fed. Cas. No. 4,364:
“A contract, made after a vessel is launched and afloat, to furnish her with a particular means of propulsion, — as sails or steam paddles, — or to change the mode of her propulsion, is a maritime contract. Certainly it is not a contract to be performed on land. Neither is it a contract to build, any more than any contract for repairs.”
A water pump furnished to a water craft used for pumping out a dry dock has been held to be for maritime service, for which a lien in admiralty may be enforced. Winslow v. A Floating Steam Pump, 2 N. J. Law J. 124, Fed. Cas. No. 17,880. Likewise casts furnished for a foreign vessel are materials for which a lien obtains. Zane v. The President, 4 Wash. 454, Fed. Cas. No. 18,201.
It is suggested in argument, but not specifically pleaded, that no maritime lien obtains in this case for the further reason .that the repairs in question, if any, were made on land, and not on the vessel. The facts are, as found by the commissioner, that the steamboat was in port at Jefferson City; and the libelant had its factory at Kansas City, Mo., where the engine and appurtenances were manufactured under contract especially for this vessel. When completed it was to be shipped f. o. b. to the claim
2. The persistent contention of claimant to avoid the enforcement of a lien upon his vessel for this essential equipment of the vessel after it entered upon navigation, 1o enable it to accomplish its required propulsion, is as reprehensible in morals as it is unfounded in fact and law. A brief reference to the negotiations between these parties leading up to the obtaining possession of the engine and its equipments can have no doubt in any fair and unprejudiced mind 1hat this claimant deceitfully and cunningly intended from the outset to obtain possession of this engine without paying for it. The negotiations began in the fall of 1896, by correspondence between the claimant and libelant. In his letters the claimant stated that his boat had been upon the river for some time, and the c-ngine in use thereon was insufficient, and he wished to obtain one of the libelant’s manufacture. The price first demanded by libelant for the engine and appurtenances was $1,200. This demand was not acceded to by the claimant. Later, during the winter of 1896-97, the claimant visited Kansas City, when, by verbal negotiations between them, the kind and quality of engine desired by claimant was agreed upon; and,
As by claimant’s repeated receding from proposition after proposition, and cunning jugglery, he had gotten the engine delivered at Jefferson City, so that the libelant was much at his mercy, the libelant wrote said lawyer on the 29th of March, consenting that on the payment of the $300 down, and giving the bank the bill of sale for the engine, conditioned upon the release when the notes were signed, Strutman could take the engine, set it up on the boat, and test it, “and within two weeks sign the notes for the balance.” The $300 was afterwards paid, but the notes were not given in any form at that time. Strutman and his lawyer afterwards, on the 27th day of April, 1897, induced said bank to take from Strut-man a single note for the balance of the purchase money, $565.03, payable to libelant October 27, 3897, the consideration of which was expressed to be for one No. 9 Weber gasoline engine, with appurtenances, sold and conveyed by Strutman to libelant, with a condition something after the character of a chattel mortgage, to be discharged upon the payment of said sum of money. There is no pretense of authority from libelant to said bank to take such a note. The agent of the bank who had this matter in charge for libelant testified that it was not the note authorized to be taken, and when it was forwarded to the libelant it immediately, on April 29, 1897, returned the same to the bank, and wrote Mr. Strutman, advising him of its return, and stating that it was not in accordance with the agreement in any respect; that he was to pay the balance on the engine within six months after the engine was shipped, and therefore the notes should bear interest from the 24th of March; and further reminding the claimant of his agreement to give security by a lien on both the engine and the boat, and requesting him to go to the bank and give a note of date March 24, 1897, covering both the engine and the boat. This the claimant failed and refused to do; and again, on the 5th of May, 1897, libelant wrote the claimant, complaining of his refusal, and reminding him of his promise during the negotiations to give a mortgage on the engine and the boat. The answer to this from Strutman came on May the 18th, in which, without at all denying the statement in the letter to him about his promises, he simply said that he was working “to make money with the intention to pay for the engine to keep from paying eight per cent.” To this claimant replied on the 22d of May, 1897, upbraiding him for not keeping his promises, and advising him that libelant had written to the bank that, if the claimant did not want to give the boat as security, if he would divide up the payments, one-third in two months, one-third in four months, and one-third in six months, it would waive the security on the boat. To this claimant made no reply, nor did he go to the bank and make the notes accordingly;
Counsel for claimant presents his case as if it devolved upon the libelant to show a specific agreement between the parties that a lien upon the boat should be retained. The law gave the lien absolutely; and, therefore, it devolved upon the claimant to show affirmatively that this lien was waived as a part of the contract. No unprejudiced mind can read the correspondence and the testimony of the parties without being persuaded that it never was the intention of the libelant to waive his right to security upon the boat except upon the condition either of a cash payment, which was originally agreed upon, or the giving of personal security; or, finally, when driven to it by the bad faith and sharp practice of the claimant in getting the engine delivered at Jefferson City, and his refusal to do anything except upon his owrn terms, libelant proposed to waive the security on the boat if the claimant would make certain notes, which he never made, and if he would make certain payments, which he never made. Had the claimant paid the $300 and given notes for the balance, that of itself would not have amounted to a waiver of the lien. “The notes being unpaid, he may return them, and enforce his lien.” The Kimball, 3 Wall. 37. This is precisely what the libelant did with the note of April 27, T897, delivered to the bank by claimant; the return of which is again offered at this trial. Even if the note of April 27, 1897, were construed as an equitable chattel mortgage, and even if it had been accepted by the libelant, as the mortgage is but an incident of the note, that of itself was not sufficient to- waive the maritime lien. The D. B. Steelman, 48 Fed. 580. And what adds conclusiveness against the contention of claimant is the fact that the letter of his counsel, suggesting the matter of the bill of sale of the engine, conveyed the idea that this was only a temporary arrangement for the protection of the libelant while the engine was being tested on the boat, to end when the test was satisfactory. And even then he did not give such bill of sale on taking the engine and putting it up, but a month later, allowing himself six months from the 27th day of April, 1897, in which to pay, instead of six months from the date of delivery of the engine, to which libelant refused to accede. The result of all of these maneuvers of the claimant is that for two years he has had the use of the engine, without paying therefor, during which he has, by his meritless litigation, piled up costs equal to the original debt. He, with a show of virtue, offers to allow judgment in personam for the balance due on the contract; but this loses its flavor of fairness in the-