THE MARY WOODS

• Decision Date: 14 December 1928
• Docket Number: No. 5042.,5042.
• Citation: 29 F.2d 466
• Parties: THE MARY WOODS. WOODS v. AYER & LORD TIE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

29 F.2d 466 (1928)

THE MARY WOODS WOODS v. AYER & LORD TIE CO.

No. 5042.

Circuit Court of Appeals, Sixth Circuit.

December 14, 1928.

W. P. Biggs, of Memphis, Tenn. (J. W. Canada, of Memphis, Tenn., on the brief), for appellants.

Dan F. Elliotte, of Memphis, Tenn. (C. C. Grassham, of Paducah, Ky., on the brief), for appellee.

Before MOORMAN, MACK, and HICKS, Circuit Judges.

HICKS, Circuit Judge.

This is a suit in admiralty. Libelant is entitled to recover $7,543.58 and interest if it has sustained its claim by the weight of the evidence. The Calion Lumber Company sold the steamer Hosmer to Williams, Kelly, and Powell for $4,000. Williams and Kelly sold their interest to libelee Woods. Woods and Powell were partners under the name and style of "River Log & Towing Company." They used the Hosmer for towing logs. It is conceded that Capt. Kelly, the same Kelly who sold to Powell, was the master of the Hosmer before and up to the time of the transactions in question here, and that he received the compensation of a regularly licensed master. Powell and Woods desired to sell the boat, but it was in such need of repairs that it would not pass inspection, and it was therefore taken by Kelly, its master, under the orders of its owners, to Paducah, Ky., and on April 12, 1926, placed on the Ways in the Marine Yards of the libelant. It remained there about four weeks, during which time it underwent repairs for which libelant charged $16,053.07. On this account payments were made from time to time, aggregating $8,509.49 leaving a balance of $7,543.58 sued for herein, as for materials furnished and work done at the request and under the orders of the then joint owners, Woods and Powell and the master Kelly. The defense is that this work was done under an agreement between libelant and Woods and Kelly that the whole cost should not exceed $8,000, for which payment had been made, and that Kelly was not authorized to contract for repairs or improvements in a greater sum.

On April 15, 1926, Powell and Woods, then owners of the boat, went to Paducah and met Capt. W. L. Berry, the manager of the Marine Yards of the libelant, and along with Kelly all four examined the boat and entered into negotiations for its repair. It is undisputed that the matter given principal attention was the condition of the hull. S. E. Peak, foreman of ship carpenters on the yard, inspected the hull by order of Capt. Berry and reported that a new one would be necessary, whereupon it was agreed that libelant would furnish a new hull of the type known as scow bow gunnel hull. Capt. Berry testifies that he gave Woods and Powell an estimate upon the cost of the hull of $8,000, which was to include the decking, deck beams, floor beams, and sides, but nothing above the deck, and he gave them no estimate for the cost of any work upon the cabin; that Powell and Woods left Capt. Kelly, the master, there to inspect and supervise the work and directed him to do what Capt. Kelly ordered done, and stated that he was their representative and would answer for them and anything he ordered done to go ahead and do, and that he made the repairs to the cabin and other...