Davidson v. Green

• Decision Date: 25 January 1904
• Docket Number: 7.
• Citation: 127 F. 999
• Parties: DAVIDSON v. GREEN et al.
• Court: U.S. District Court — Western District of New York

127 F. 999

DAVIDSON v. GREEN et al.

No. 7.

United States District Court, W.D. New York.

January 25, 1904

Clinton & Clinton (George Clinton, Jr., of counsel), for libelant.

Clinton & Thomas (Spencer Clinton, of counsel), for respondents.

HAZEL District Judge.

This proceeding has been brought in personam to recover from her owners the sum of $1,929.83 for repairs and materials furnished to the excursion steamer Pearl at Bay City, Mich between April 28 and July 1, 1898. Evidence was offered by the respondents, and was admitted, to prove that on April 22 1898, an agreement in writing was entered into between libelant and Joseph H. Rebstock and John Johnson, acting for the owners, to so rebuild the Pearl as to make her stanch seaworthy, and fit for navigation. The character of the repairs is set forth in detail. The specifications enumerate many specific items of work and labor to be performed, and material to be furnished, to fulfill the contract, and to enable the Pearl to pass government inspection as a passenger steamer. The contract price agreed upon was $6,000, payable in installments within one year from July 1, 1898. The full amount was eventually paid, the last installment having been received more than a year after the date of the agreement. At the end of the agreement was a provision that the enumerated details of repair work for the vessel, and the materials to be furnished, were simply an outline thereof, and that the libelant was to perform 'a proper and suitable job to put the vessel in first-class shape. ' The libelant seeks to recover for extra repairs and material furnished, not for any of the work specified in the paper writing. The amended answer of the respondents refers to the written memorandum and alleges that the libelant did not render the services therein enumerated in a workmanlike manner. This caused additional expenditure by respondents to complete the repairs included in and required by the agreement. It is also alleged in the answer, and the proofs support the allegation, that, under the original contract, subsequent to making the repairs at Bay City, a parol arrangement was entered into between the parties for other repairs at further expense to the respondents. These were made upon the vessel at Buffalo, N.Y., her port of hail. The answer further alleges excessive charges for certain labor and materials concededly ordered by respondents under the parol arrangement, and libelant's wrongful conversion of the Pearl's capstan or windlass, valued at $250. Upon argument, respondents' counsel concedes that no affirmative judgment can be awarded, but insists that the damages sustained as a result of libelant's failure to perform the services included in the agreement in a proper, workmanlike manner may be recouped to the extent of diminishing or extinguishing libelant's claims. It is well settled in admiralty that an independent set-off or counterclaim cannot be considered to reduce or diminish a claim for maritime services unless the damages upon which the set-off or recoupment is directed arise out of the same transaction. Ebert v. The Schooner Reuben Dowd (D.C.) 3 Fed. 520; The Zouave (D.C.) 29 F. 298; The Frank Gilmore (D.C.) 73 F. 686; American Steel Barge Co. v. Chesapeake & O.C.A. Co., 116 F. 857, 54 C.C.A. 207; Kennedy v. Dodge, Fed. Cas. No. 7,701; 2 Pars.Ship.and Admy. 433.

Accordingly the first point to be decided is whether the damages claimed to have been sustained by the owners of the Pearl in consequence of libelant's failure to perform the agreement of April 22d may be recouped where the libel filed seeks to recover compensation for extra services and materials furnished, and which were not expressly included in the terms of the written document. The libelant contends that the doctrine of set-off and recoupment cannot be applied, for the reason that recovery is demanded upon an independent claim, and having no connection with the original arrangement to repair the vessel. The evidence, however, does not support this contention. The memorandum under which much of the work upon the vessel was performed...