Siler Mill Co. v. Charles Nelson Co.

• Decision Date: 02 February 1917
• Docket Number: 13499.
• Citation: 94 Wash. 477,162 P. 590
• Parties: SILER MILL CO. et al. v. CHARLES NELSON CO.
• Court: Washington Supreme Court

162 P. 590

94 Wash. 477

SILER MILL CO. et al. v. CHARLES NELSON CO.

No. 13499.

Supreme Court of Washington

February 2, 1917

Department 2. Appeal from Superior Court, Pacific County; Edward H Wright, Judge.

Consolidated suits to foreclose liens by the Siler Mill Company and others, against the Charles Nelson Company and another. Judgment for plaintiffs, and defendant named appeals. Affirmed.

Robert G. Chambers, of Raymond, for appellant.

Welsh &amp Welsh, of South Bend, for respondents.

HOLCOMB J.

In consideration of $52,500, Andrew Peterson, by a written contract, agreed to construct a certain boat for appellant the Charles Nelson Company. Peterson, during the time the ship was being constructed, contracted indebtedness to respondents Siler Mill Company and Quinault Lumber Company for materials furnished; also, to defendants Williapa Construction Company and Sheppard & Dennis for hauling such materials to the shipyard. Peterson never fulfilled the terms of his contract, and, at the time of his default, the Charles Nelson Company had paid him the sum of $34,400, as well as various sums to laborers and materialmen which in the aggregate exceeded the contract price of $52,500. The various respondents then commenced separate actions, by virtue of Rem. Code, § 1182, to foreclose their respective alleged liens against the vessel, which actions were subsequently consolidated. From a decree foreclosing these liens, the Charles Nelson Company has appealed to this court.

By the terms of the contract, it fairly appears that title to the boat during its construction vested in appellant, the Charles Nelson Company, which was a foreign corporation; and appellant contends that a lien by virtue of a state statute cannot be enforced in an action in rem in a state court against a boat owned by a foreign corporation, urgently insisting that the proper course for respondents to have pursued was to bring a personal action against the owners of the vessel, and to attach the vessel or any other property of the owner as security for any judgment that might be obtained. This argument proceeds upon the assumption that the present action is in rem and not in personam.

The pleadings disclose that both Peterson and the Charles Nelson Company were made parties defendant; that a personal judgment as against Peterson was prayed for, as well as the foreclosure of the lien. Respondents also asked for appointment of a receiver to take charge of the ship and a temporary restraining order to prevent the Charles Nelson Company from removing the boat from the jurisdiction of the court. It is apparent therefore that this is not strictly an action in rem, but is one frequently spoken of as quasi in rem, because it seeks only to subject certain property of the debtors to the discharge of the claims asserted. Gassert v. Strong, 38 Mont. 18, 98 P. 497.

But in any event appellant's contention, that the present action cannot be enforced in a state court by virtue of a state statute creating a lien, cannot be sustained, as these materials were furnished to Peterson, who had contracted to build a vessel, which is universally held not to be a maritime contract. Washington Iron Works Co. v. Jensen, 3 Wash. 584, 28 P. 1019; Delaney Forge & Iron Co. v. The Winnebago, 142 Mich. 84, 105 N.W. 527, 113 Am. St. Rep. 566; Johnson v. Chicago & P. Elev. Co., 119 U.S. 388, 7 S.Ct. 254, 30 L.Ed. 447; Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 20 S.Ct. 874, 44 L.Ed. 921.

If the contract in question were a maritime contract, appellant's contention would be a meritorious one, as any action cognizable in admiralty, whether in rem or in personam, is within the exclusive jurisdiction of the admiralty courts. But, as was said in Knapp Stout & Co. v. McCaffrey, supra:

'The rule to be deduced from these cases, so far as they are pertinent to the one under consideration, is this: That wherever any lien is given by a state statute for a cause of action cognizable in admiralty, either in rem or in personam, proceedings in rem to enforce such lien are within the exclusive jurisdiction of the admiralty courts. But the converse of this proposition is equally true that, if a lien upon a vessel be created for a claim over which a court of admiralty has no jurisdiction in any form, such lien may be enforced in the courts of the state. Thus, as the admiralty jurisdiction does not extend to a contract for building a vessel, or to work done or materials furnished in its construction ( The Jefferson [People's Ferry Co. v. Beers], 20 How. 393 ; The Capitol [Roach v. Chapman], 22 How. 129 , we held in Edwards v. Elliott, 21 Wall. 532, that, in respect to such contracts, it was competent for the states to enact such laws as their Legislatures might deem just and expedient, and to provide for their enforcement in rem.'

It is apparent from the rule laid down in that case that it is immaterial whether the present action is in rem or in personam.

Again, in West v. Martin, 51 Wash. 85, 97 P. 1102, 21 L. R. A. (N. S.) 324, this court, in construing the lien statute in question, said:

'Such liens created by state statutes are enforceable in the state courts when the subject-matter is not within the jurisdiction of admiralty.'

The Roanoke, 189 U.S. 185, 23 S.Ct. 491, 47 L.Ed. 770, which is strongly relied on by appellants, is not in point, as the materials there were furnished to persons who had contracted to repair a vessel in maritime service, which was clearly a maritime contract and thus within the exclusive jurisdiction of the admiralty courts. Nor do we consider the case of Waddell v. Steamer Daisy, 2 Wash. T. 76, 3 P. 616, in point, as the statute construed in that case is not the same as that now in force (Rem. Code, § 1182); and respondents, having furnished materials to the contractor Peterson, are squarely within the terms of the present statute.

It is next urged that the trial court erred in allowing the liens of respondents Willapa Harbor Construction Company and Sheppard & Dennis, which were claims for cartage on the grounds that these are not lienable items, the materials having been purchased f. o. b. mill wharves; and, secondly, if they were lienable items, they were waived by the claimants thereof by delivery. The rule that a carrier's possessory lien is waived by a common carrier by delivery is only applicable...