The James H. Prentice

• Decision Date: 21 November 1888
• Citation: 36 F. 777
• Parties: THE JAMES H. PRENTICE. v. THE JAMES H. PRENTICE. MYLES et al.
• Court: U.S. District Court — Eastern District of Michigan

36 F. 777

THE JAMES H. PRENTICE.

MYLES et al. v. THE JAMES H. PRENTICE.

United States District Court, E.D. Michigan.

November 21, 1888

George W. Radford, for libelants.

H. H Swan, for claimants.

BROWN J.

By How. St. Sec. 8236, 'every water craft of above five tons burden, used or intended to be used in navigating the waters of this state, shall be subject to a lien thereon: (1) For all debts contracted by the owner or part owner, master clerk, agent, or steward of such craft * * * on account of work done, or materials furnished, by mechanics, tradesmen or others in and about the building, repairing, fitting furnishing, or equipping such craft: provided that, when labor shall be performed, or materials furnished as aforesaid, by a subcontractor or workman other than an original contractor, and the same is not paid for, said person or persons may give the owner or his agent, or the master or clerk of said craft, timely notice of his or their said claim, and from thenceforth said person or persons shall have a lien upon said craft, pro rata, for his or their said claim, to the amount that may be due by said owner to said original contractor for work or labor then done on said water craft.'

As there is no allegation in the libel that this steam-barge was used or intended to be used in navigating the waters of this state, it is undoubtedly defective in this particular. I have had frequent occasion to hold that this allegation was jurisdictional, and must appear wherever it was sought to enforce a lien given by the state statute; but as the fact appears to be that the Prentice was a domestic vessel of more than five tons burden, and was actually used in navigating the waters of this state, I will permit the libel to be amended, and will dispose of the case upon its merits.

As the lumber was furnished to Beaudry, the contractor, who had undertaken to improve and repair the barge, it is incumbent upon the libelants, in order to charge the vessel or her owner, to show that the lumber was furnished upon the order of the owner or his agent. The facts in this connection are as follows: Some time in January, 1886, Sanborn, who was then the sole owner of the barge, contracted with Beaudry to put a double deck and cabin upon the Prentice for $3,850. While this work was pending, Sanborn agreed to sell a half interest in the vessel to John Kelly, his co-respondent in the case. It appears that Kelly was to become a half owner on the completion of the work by Beaudry, and that when she was completed he did become such, and now appears as one of the claimants in this case. Prior to March 11, 1886, libelants, who were lumber dealers in this city, delivered certain lumber to the Prentice upon the order for the same by Beaudry, who was then engaged upon his work. This lumber, however, they charged upon their books to the Prentice directly. They had no knowledge of the contract between Sanborn and Beaudry for the work, or between Sanborn and Kelly for an interest in the vessel. Some time in February Mr. Myles, one of the libelants, asked Beaudry for money on account of the lumber then furnished, and by appointment with Beaudry went to the dry-dock where the vessel was being overhauled, for the purpose of meeting Capt. Kelly; Beaudry having told Myles that he expected one of the owners down, and as soon as he came down he would get the money. Myles was there introduced to Kelly as one of the owners of the vessel. He then stated to him that he needed some money on the lumber account, to which Kelly replied that he expected some, and as soon as it ca?e Myles should have it. A day or two afterwards Kelly came to the libelant's office with Beaudry, and asked him the amount of the bill, which was stated to him. He was also informed that the lumber had been charged to the Prentice; that it had always been libelant's custom to charge lumber furnished by them directly to the boats, to which Kelly stated: 'That is all right. I am expecting a draft from Sanborn in a day or two, and, as soon as it comes, we will call in and settle your bill. ' Kelly also stated that Sanborn was the other owner. At this time Kelly was shown the residue of the lumber intended for the Prentice, which libelants had already gotten out, and had stored in their sheds. Kelly, in speaking of the lumber, announced his satisfaction with it, and, on Myles asking him about payment, stated that it would be all right, and that they would pay for the lumber before the boat was taken away; that they should let Beaudry have all the lumber necessary to complete the boat, and should have him certify to the bill and send it to Saginaw, and they would send a draft. After this conversation, which occurred about the 11th of March, Kelly called upon the libelants, and presented them a draft drawn and dated at East Saginaw, March 12th, payable to the order of Sanborn, for $476. This draft was indorsed by Sanborn, payable to Kelly. Kelly indorsed the draft, and gave it to Myles, who gave Kelly a check for $178.54, the difference between the amount of the draft and the bill of lumber furnished up to that time to the Prentice. From that time onward libelants furnished to the Prentice the lumber in question, and when the last of it was furnished obtained Beaudry's certificate to the correctness of the bill, in accordance with the instructions given by Kelly, and for the amount of this bill filed their libel. Prior to this, however, they wrote Kelly at East Saginaw, demanding a settlement, to which he replied under date of May 10th as follows:

'Mr. Beaudry settled up with me a week ago Wednesday, and said he would settle his bills. He had the contract to complete our boat for a certain sum of money, and we paid it to him, and durst not pay any of his bills without an order from him, as we had never appointed him our agent. If you had got an order from him before I settled with him, I might have been able to fix it as I did with others. I understand Beaudry left for Canada, and paid no bills. He was doing work for other boats at the same time, and taking lumber from us to them. I claim we are not holders for Beaudry's drafts.'

1. Assuming these to be the facts, (and the testimony largely preponderates in this direction,) the first question here is whether Kelly can be considered a part owner, or the agent of the owner, within the meaning of the statute, since it is clear that he bore no other relation to the vessel which.would authorize him to bind her by the purchase of materials on her account. pit is equally clear that Beaudry had no such power, since he was a mere contractor. The Brunette, 19 Mo. 518. The statute above cited also distinguishes the position of a contractor from that of an agent, and makes special provision for materials furnished to such contractor. Kelly, however, had contracted with Sanborn to purchase half the vessel as soon as her repairs were completed. This contract was subsequently carried out, and he appears in this case as one of the claimants, and part owner of the vessel. By his own statement he was to superintend Beaudry's work under his contract with Sanborn, and see that it was done in accordance therewith. As such superintendent he inspected the ceiling which Beaudry had selected of libelants, and assumed to make a modification of his contract. He appears to have been put forward by Sanborn as his only representative in Detroit, and to have attended to the payment of libelant's first account against Beaudry, and also to a certain account for timber furnished by parties in Royal Oak. If, under these circumstances, he told Myles that it would be all right to let Beaudry have all the lumber he wanted, and approved of such as Beaudry had selected, and represented himself as one of the owners of the vessel, it was very natural that the libelants should act upon his supposed authority to bind her. The tone of Kelly's letter, written from Sanborn's office on the 10th of May, in which he speaks of the Prentice as 'our boat,' and disclaims having appointed Beaudry 'our agent,' but does not disclaim his own authority certainly indicates that he supposed he was acting for and in the interest of the vessel, of which he soon after became a part owner. While the case of The John Farron, 7 Ben. 53, resembles this in its leading features, it is distinguishable in the important particular that the proposed purchasers, who stand in the place of Kelly in this case, never completed their contract of purchase, and the vessel was returned to their original owner. But the authority of this case, even if it were directly in point, is very considerably impaired by the fact that it was reversed upon appeal, (14 Blatchf. 24,) Judge JOHNSON holding that the owner, having put the proposed purchasers in possession of the vessel, by which they were enabled to appear as owners to third persons, and thus to...