89 F. 366 | D.S.C. | 1898
These cases were heard together, and the controversy arises out of a contract for repairs of the steamer
“Sixth. No new work of any description done on the said steamer, or any work of any kind whatever, shall he considered as extra, unless a. separate estimate in writing for the same, before its commencement, slia.ll have been submitted by the, contractor to the proprietor, and tlie signature ol’ the chairman of its board of directors obtained thereto; and the contractor shall demand payment for such work immediately after it is done. In case of day’s work, statement of the same must be delivered to the proprietor, at latest, during the week following that in which the work ma.y have been done; and only- such day’s work and extra work will be paid for, as such, as agreed on and authorized in writing.”
The controversy comes from an alleged agreement subsequent to the written contract, which it is claimed was made between S. J. Preg
“I did, and so did Captain Cherry. After consulting a time, he wanted to know if I could do that work in time to save tlie season; he then considered the cost of a new boat against rebuilding that one. T suggested that by taking out the machinery I could save $4,000 or $5,000. I did offer to build a new boat — hull—for $11,000. They decided then that I should go on, and make' the' old hull new. Mr. Witte told me, ‘All right; go ahead.’ I told him I did not have the means to do that much work. He said he would furnish me the means every week to pay my men, which he did, and I went along with the work and completed it.”
And this is Mr. Witte’s account of the same interview: In reply to the question whether he remembered tlie occasion, and to state just what occurred, he answers:
“I remember it distinctly. Capt. Cherry and Mr. Pregnall came down to the office, as they said that the vessel was not in as bad a condition as represented by some people, — making mention of some certain parties at the time, — and that she could be repaired, and be a stronger and stouter vessel than before; stating that, putting these keelsons on, and which were in the contract, the vessel would be stouter and better than before. The question about how much it would cost to build a new hull came up in this way: As some people said it would be cheaper to build a new than repair the old, this was reported to me that such had been said; and I asked Mr. Pregnall how much could we build a new hull for. and he said $11,000, and I said, ‘Well, I was told it could be done for $8,000 or $9,000.’ He said his price was $11,000.”
Replying to tbe question, “Did you, in consequence of that conversation, say, ‘All right; go ahead’?” he answers:
“No; I told them after that that we concluded to go on with the contract, —that was the result of the conversation, — and finish the vessel, and finish it in the time agreed upon; and not a word was said about the boat, and that the ferry company had plenty of money. Everybody knew it hadn’t. And I had no occasion to say the bank had plenty of money. Everybody knew it had.”
The last part of this answer obviously refers to testimony previously given by Cherry, wherein, in replying to questions as to why he had acquiesced in certain work being done which was outside the contract, he- had said that it was because Pregnall had informed him that he
The above is substantially all of the testimony contained in the record relating to what occurred at the interview wherein it is claimed that the old contract was set aside and a new one entered into, and the precise question to be determined is whether it is sufficient evidence to support the contention. The old rule of the common law laid down in the Countess of Rutland’s Case, 5 Coke, 25b, that “every contract or agreement ought to he dissolved by matter of as high a nature as the first deed,” has been so far refined by distinctions intended to mitigate its rigor in particular cases, and so chipped away, as to be no longer controlling; .and it may now be considered settled that the terms of a contract under seal may he varied by a subsequen t parol agreement; that, where there is nothing in the nature of the contract itself requiring it to be in writing, there is no principle which requires the new one to be in writing; and some courts of high authority say that attempts of parties to tie up by contract their freedom of dealing with each other are futile. Rut, where parties have hound themselves by a written agreement, that agreement remains, and must he the measure of their rights, unless both, parties agree to an abandonment or dissolution of it. Mere negotiations for a variation in the contract will not amount to a waiver of it; for, as every contract, is the result of an agreement of minds, a like agreement of minds is needed to dissolve it. Unless both parties in such negotiations understand alike, there is no meeting of minds, no contract; or, as Mr. Justice Miller says in Wheeler v. Railroad Co., 115 U. S. 34, 5 Sup. Ct. 1063:
“It is to be observed that to annul or set aside this contract, fairly made, requires the consent of both parties to it, as it did to make it. There must have been the same meeting of minds, the same agreement to modify or abandon it, that was necessary to make it.”
That Mr. Pregnall understood that the old written contract was abrogated in so far that he was thenceforth to go ahead and do all the work that he thought necessary is clear, but that is not enough. It takes two to make a contract, or to unmake it, and Mr. Witte says positively that he did not make any agreement or give any authority to do any work outside the written contract. Capt. Cherry, the only witness present at the interview, says that he (lid not understand that any agreement was then made for any work outside the contract. This evidence falls very far short of the proof necessary, to support a contract, nor is its exiguity strengthened by the doctrine of probabilities. The chairman of the board of directors of this company is a cautious business man, who hut a week or two before had required its
Being fully satisfied that there was no formal agreement to renounce the old contract, it remains to consider whether the parties are estopped by their conduct from setting up the contract. Oases of high authority have been cited to support the proposition that parties may renounce a contract in any way they see fit, and that they can substitute a new oral contract by conduct and intimation as well as by express words. Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549; West v. Platt, 127 Mass. 367; O’Donnell v. Clinton, 145 Mass. 461, 14 N. E. 747. Passing by the question whether a corporation would be thus affected unless there was some proof that the conduct of its officer or agent was within the scope of some delegated power, let us see whether there is such proof of acquiescence or ratification as will estop this company. That the new work was done with the acquiescence and approval of Capt. Cherry is'not denied. Whatever may be the powers of the master of a vessel in a foreign port to bind his. ship by his contracts for repairs, it cannot be claimed that he had
Appeal is made to the principles which govern‘■courts of admiralty in the exercise of their jurisdiction; that they are not bound by the strict rule of the common law, and can determine cases submitted to their cognizance upon equitable principles, and according to the rules of natural justice. It needs hardly to be said that, as a question of conscience, no man ought to get the benefit of another’s labor without paying for it; and counsel know that I have strenuously urged upon them a settlement of this case out of court. While a court of admiralty construes instruments as a court of equity does, with a large and liberal indulgence, and while, in the large majority of cases which come within its cognizance, it has both the right and duty to do what it conceives to be justice, yet in matters of simple contract, where parties legally competent have bound themselves in an agreement whose terms are so plain that there is no room for construction, it is bound, as all courts are bound, to compel performance, and has no dispensing power. Mr. Justice Swayne says in The Harriman, 9 Wall. 173:
“Thé answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of the courts to enforce contracts, not to mate or modify them.”
The libel of William M. Bird & Co. will next be considered. It was expressly stipulated in the agreement between Pregnall and the ferry company that all the materials and supplies should be furnished by the contractor, and that, before any payments were to be inside1, the contractor was to furnish a certificate that there were no liens of any kind whatever upon the vessel. The testimony shows that Bird was a director and the secretary of the ferry company, and his partner, Welch, read the contract. The vessel was in her home port. Under the general maritime law there is an implied lien for supplies furnished io a vessel in a foreign port upon the order of the master, there being a presumption that they are furnished on the credit of the vessel; for, as was said in an early case:
“The vessel must got on,” and “the necessities of commerce require that, when remote from the owners, he Lthe master] should be able to subject tlu: owners’ property to that liability without which it is reasonable to suppose he will not be able to pursue his owners’ interests.” The Aurora, 1 Wheat. 96.
As no such necessity could be supposed to exist in the home port, it was long held that (his lien for supplies did not attach at the home port of the vessel. To obviate .Bus apparent injustice or inequality, many of the states have passed laws giving to (heir residents liens upon vessels for labor performed or materials, furnished. Of this class of Muhiies is (liat contained in section 2504 of the Revised Statutes of South Carolina. These liens have been repeatedly held to be valid and enforceable by proceedings in rem in the admiralty courts of the United States, as being maritime in their nature. It is only because (hey are of this nature that courts of admirahy would have; jurisdiction to enforce them. The Lottawana, 21 Wall. 568; The Planter, 7 Pet. 343; The J. E. Remble, 148 U. S. 1, 13 Sup. Ct. 498; The Kate, 164 U. S. 470, 17 Sup. Ct. 135; The Glide, 167 U. S. 610, 17 Sup. Ct. 930; The Samuel Marshall, 4 C. C. A. 385, 54 Fed. 402,— contain elaborate discussions of the principles which govern the courts of the United States in this class of cases. The conclusion reached by me, as the result of them all, is that liens created by state laws for repairs and supplies in the home port are accorded the same precedence as liens for repairs and supplies in a foreign port under the general maritime law; that the true limits of maritime law is a judicial question, and no state law can enlarge or narrow it; that, in enforcing such liens given by the state law, the courts of the Uni ted States are governed by the principles and restrained by the limitations which ordinarily attach to liens in admiralty; that these liens all rest upon the principle that the supplies are furnished to the sldp upon the credit of the ship herself, to preserve her existence and secure her usefulness for the benefit of all having an interest in her;