173 F. 834 | W.D.N.Y. | 1909
This is a libel in rem to recover a balance due for work and labor performed upon the steamer Venezuela, and furnishing said steamer, pursuant to written contract, two furnaces with cast-iron fronts, together with breeching and smokestack, at the agreed price of $2,9(53; also for supplying a new blowpipe for the boiler, amounting to $90; and for extra work performed and money-expended in subsequently repairing furnaces at the ports of Cleveland and Bay City. The Davidson Steamship Company, claimant, has filed a cross-libel in personam, alleging a breach of contract, in that the work of fitting the steamer with new furnaces was not performed in a proper and workmanlike manner; that the furnaces constantly leaked, causing a loss of time and delay in the steamer’s navigation and trips. Such a counterclaim, when it is shown to relate to matters contained in the original libel, and where the claims of the libelant and cross-libelant arise out of the same transaction, is unquestionably maintainable under admiralty rule 53. The Highland Fight (D. C.) 88 Fed. 296; The Electron (D. C.) 48 Fed. 689.
It is claimed by the cross-libelant that credit was not given the vessel, and therefore no lien was created for the services performed or the materials furnished. The facts and circumstances, however, sufficiently show that the manufacturers of the furnaces looked to the vessel, aiid not to the owner, for compensation for their entire services. There certainly existed a tacit understanding that the Venezuela should be bound, and that libelants should have a lien for their labor performed and materials furnished. The Newport (D. C.) 107 Fed. 744 ; The Gracie May. 72 Fed. 283, 18 C. C. A. 559. We may now consider the case on its merits.
The proofs are that within 6 hours after the departure of the vessel from the port of Buffalo on her voyage up the Lakes on April 25, 1906, the furnaces leaked badly at the joint where the flue sheets were connected'to the ends of the furnaces, and in consequence thereof the steamer was obliged to put in at Cleveland for repairs. There she was partially repaired by Mr. Maher, a boiler maker, who was subsequently relieved by the libelants with the sanction of claimant. Libel-ants completed the repairs, which delayed the Venezuela for about 10 days, when she again started and completed her trip. No complaints of 'faulty workmanship or leakage were thereafter made -to libelants until August 30th, when they were notified by claimant that the furnaces again leaked. Between the time of re-riveting and alterations in parts of the furnaces at Cleveland and the last-mentioned date, a period of 4 months, the Venezuela was constantly engaged in her business of transporting merchandise, and libelants had no reason to suppose that the work continued unsatisfactory, or that the furnaces did not adequately perform their functions. On September 1, 1906, the libelants, at the request of the owner of the Venezuela, went to Bay City to inspect the furnaces, and, if necessary, to make further alterations and repairs. In a conversation with Mr. Davidson, the president of the claimant, the witness Tashenberg, one of the libelants, stated that, as the steamer used-a Howden apparatus to induce a draft in the furnace, it would not be possible to keep the riveted joints at the end of the furnaces absolutely secure from leaks without the use in the furnaces of a fire-brick arch. Mr. Davidson, however, insisted that under the contract the libelants were required to perform their work without leakage and without the necessity of using fire brick.
Libelants claim that from the beginning of the work they repeatedly stated to the engineer of the Venezuela and to Mr. Davidson that the Howden draft, which was used by the steamer, induced draft which would furnish heat of such intensity that, to protect the joints, a firebrick arch in the furnaces would be required. Nothing, however, was stated at the time of making the contract to indicate that fire brick for the interior of the furnaces was necessary to protect the joints, and, moreover, libelants knew that the owner of the Venezuela objected to its use. In this connection I may state that claimant’s t;eason for declining to use fire brick, on the ground that it would result in diminishing the draft area of the furnaces, with consequent loss of ef ficiency, is not thought of conspicuous consequence. It is probably true that the draft would be somewhat reduced, but the extent thereof wotdd be negligible. However that may be, it appears by the evidence that the vessel has continuously used the furnaces with and without the use of a fire-brick arch from the time the repairs were made at Cleveland until the vessel was dry docked in September at Bay City. Subsequently she continued the use of the furnaces until the month of December, 1906, when the season of navigation ended. In these circumstances I am of opinion that there was an acceptance of the furnaces and the workmanship which is the subject of this controversy by the claimant, and it became liable for the contract price.
It is well settled that the purchaser of a manufactured article may have a reasonable opportunity for inspection and examination before rejecting the article bought; but, as I understand the law, he is not permitted to use and retain the article known by him to be defective,
I have examined the cases cited by counsel for cross-libelant. They uphold the view that where a contract to furnish a stated quantity of goods at a specified time is broken, and the quantity delivered is less than that required by the agreement, there is a bar to an action for the price' of the goods delivered; and where a contract, for instance, was to complete a building before payment, and there was a failure to complete, the builder could not recover for his work and materials, even though the owner occupied the building. In these cases performance was a condition precedent to delivery of the property; but such conditions did not exist with reference to the furnaces here in question, which the claimants could legally have rejected immediately on ascertaining their imperfections.
The claimant maintains that it is entitled to recoup its loss of earnings for detention at Cleveland while repairs were being- made there; but I do not think that the gains and profits that the Venezuela might have made during this period are recoverable as damages. Blanchard v. Ely, 21 Wend. (N. Y.) 342, 34 Am. Dec. 250; Cassidy v. Le Fevre, 45 N. Y. 562; Horner v. Wood, 16 Barb. 386; Brauer v. Oceanica Steam Nav. Co., 34 Misc. Rep. 127, 69 N. Y. Supp. 465. In such a situation as here, the damages that the injured party may recover are the difference between the actual value of'the furnaces and work performed in installing them and what such value would have been if the furnaces and work were in complete accord with the implied warranties of performance and fitness; or the injured party, if he so elects, may recover the cost and expenses for making the furnaces fit and proper for the purposes intended. It is not contended that libel-ants willfully refused to install proper furnaces, or failed to finish the work within a stipulated time, or abandoned; or.left it partially performed, necessitating completion by some other person. On the contrary, the proofs are that on several occasions they, at cross-libelant’s request, endeavored to remedy the defects and leakages.
Reliance is placed by counsel for claimant on The Nimrod (D. C.) 141 Fed. 215, to substantiate recovery of probable earnings of the vessel during her detention while being repaired. In that case the defects in the boiler were known to the manufacturer and not known to the boat, and in the estimation of the court this was a circumstance entitling the cross-libelant to special damages by reason of the breach. In the other cases cited the detention for repairs arose from collisions or other maritime torts, and such cases are not applicable to facts
It follows, from the foregoing, that the libelants are entitled to recover the balance due them under the contract dated January 12, 1906, with the additional sum of $90 for smokestack on pony boiler, and the sum of $.132.96 for extra work not disputed, deducting therefrom, however, the counterclaim of cross-libelant for meals furnished to workmen at Cleveland, amounting to $20.25, and the amount paid or incurred for repairs to the furnaces at Cleveland and Bay City, aggregaling $165.55. Libelants’ claims for extra work, amounting to $741.25, and expenses in going io Bay City, are disallowed. The claims of. cross-libelant for loss of use of the vessel, amounting to $1,1-96.39, and for wages of seamen while the vessel was delayed pending repairs, amounting to $261.27, are disallowed.
Decree may be entered accordingly, without costs to either party.
In the above I have assumed that the vessel became liable for the repairs at Bay City, though the proofs show an independent contract between maker and libelants. If the vessel did not become liable, the item of $250 for such repairs is disallowed. The liability of the vessel for this item may be shown oil settlement of decree.
For other cases see same topic & § number* in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes