McDonald v. The Nimbus

• Decision Date: 28 June 1884
• Citation: 137 Mass. 360
• Parties: Allan L. McDonald v. The Nimbus
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

137 Mass. 360

Allan L. McDonald v. The Nimbus

Supreme Court of Massachusetts

June 28, 1884

[Syllabus Material]

Suffolk. Petition, inserted in a writ dated October 31, 1881 to enforce a lien on a vessel. The case was submitted to the Superior Court, and, after judgment for the petitioner, to this court on appeal, upon agreed facts, in substance as follows:

The schooner Nimbus was built at Bath, Maine, in the years 1876 and 1877, by Deering and Donnell of that place, under a contract with Leonard Walen, of Gloucester, in this Commonwealth, and from plans and specifications furnished by him. This contract covered only the hull and spars of the vessel, and did not include the rigging. The hull was completed, the masts were put in, the vessel launched, and the spars furnished by the contractors at Bath. She was launched on or about January 12, 1877. Walen took possession of the vessel shortly after her launching, put upon her only what rigging was needed for the trip, and brought her in this condition to Gloucester, where he completed her rigging and fitted her for sea. Some of the vessel's spars, including her topmasts, were never put in place until after she got to Gloucester. It was necessary to have ballast in the vessel on this trip, and Walen took a load of ice in her for this purpose, which he bought in Bath and sold in Gloucester after the vessel's arrival there. The crew that brought the vessel from Bath to Gloucester were employed by Walen. The vessel arrived in Gloucester some time between January 27 and 31, 1877, and remained there until April 11, 1877, when she left Gloucester on her first voyage after being completed, as above stated, and for the first time after her arrival there. On January 27, 1877, the vessel was registered at the custom-house in Bath, in the name of J. F. Donnell, one of the contractors, as sole owner. This was the first registry she ever had. On January 31, 1877, a bill of sale of that date from J. F. Donnell to Leonard Walen was recorded at the custom-house in Gloucester, of the whole of the vessel, and she continued thereafter to be registered at Gloucester in Walen's name as sole owner.

On or about January 11, 1877, while the schooner was still at Bath, Walen bought of the petitioner, who was a dealer in such articles at Gloucester, a set of blocks and mast-hoops for her. Walen told the petitioner what vessel the blocks were intended for, and gave him the number of her sails and the size of blocks desired, to enable him to select the proper blocks to compose a set for such a vessel. Walen also told the petitioner that he was the owner of the schooner. The sum of $ 168 was agreed on between Walen and the petitioner as the price for the entire set of blocks and hoops. Walen directed the petitioner to deliver the entire set of blocks and hoops to Thomas Sims, of Gloucester, a rigger, and said that Sims was to rig the vessel. The entire set was accordingly delivered by the petitioner to Sims, at Gloucester, on January 12, 1877. Sims was employed by Walen to rig the vessel. He went to Bath with James Nickerson, the first master of the vessel, put on her there what rigging was needed to bring her to Gloucester, and took with him for this purpose all the hoops and more than half the blocks bought of the petitioner, in value about $ 100. These he put upon the schooner at Bath, after Walen had taken possession. The remainder of the set he put upon her at Gloucester. They were all used in rigging the vessel, and were all in use on board her when she left Gloucester on her first voyage above referred to.

While the vessel was in Gloucester, before sailing on her first voyage from that port, Walen bought of the petitioner other articles for her, on March 8 and April 4, 1877, amounting in all to $ 18.57. These articles were ordered either by Walen or by Nickerson, employed by Walen as master of the vessel, under Walen's direction to the petitioner to let Nickerson have such articles for the schooner, as they were needed. They were all delivered to Nickerson, all used in rigging the schooner and fitting her for sea, and all in use on board when she sailed. The petitioner was informed at the time of purchase, by Walen or Nickerson, that they were intended for the schooner, and they were all charged to the schooner on his books, as were the blocks and hoops. The above articles, as well as the blocks and hoops, were necessary to the rigging and equipment of a schooner, and were the first that were put upon this schooner.

Walen never paid the petitioner for the blocks or any of the articles sold as above, nor has the petitioner ever received from any one anything whatever on account of them. No dispute is made as to the items of his bill, or that the prices charged are not reasonable and usual. On April 14, 1877, within four days after the vessel's first departure from Gloucester, the petitioner filed in the office of the city clerk of Gloucester a statement of his demand and claim of lien. The amount of the column of items is therein given as $ 186.67, instead of $ 186.57, the true amount thereof. This was an error inadvertently made by the petitioner in drawing up his statement, not discovered or noticed until long afterward. It was not a wilful or intentional overstatement of the amount due him. The price of the set of blocks, as given in the record made by the clerk on his books, is $ 68, instead of $ 168, the true amount. The petitioner had no knowledge or notice, until after the commencement of this suit, that it did not correspond in all respects to the statement filed by him.

Walen continued to be sole owner of the schooner from the time she was built, as above, until November, 1879, when she was wrecked at or near Shelburn, Nova Scotia, sold by auction as a wreck, and bought by the present respondents, residents of Placentia, Newfoundland. They never had any actual notice of the existence of the petitioner's claim, and no constructive notice thereof, other than the record above referred to, until the commencement of this suit. Between April, 1877, and November, 1879, the schooner made several trips from Gloucester, and was in that port on several different occasions. The petitioner has resided at Gloucester ever since the articles described in his bill were furnished, and knew of the vessel's being in Gloucester on some of these occasions.

If, on the above facts, the petitioner had a valid lien, at the date of the writ, which could be enforced by this court, against said vessel, for the amount of his bill, or any part thereof, judgment was to be entered in his favor accordingly, with interest from the date of the writ; otherwise, the petition to be dismissed.

Petitioner entitled to judgment for $ 18.57, and interest...