The Zouave
| Decision Date | 08 December 1886 |
| Citation | 29 F. 296 |
| Parties | THE ZOUAVE. v. THE ZOUAVE. McWILLIAMS and another |
| Court | U.S. District Court — District of New Jersey |
Syllabus by the Court
The original libel was for repairs made to a boiler, which had been constructed by the libelants for the respondent under a contract which stipulated for the use of a certain well known brand of iron. A different quality of iron from that agreed on was used, with the consent of the respondent, on the representations of the libelants that it was equally as good and just as expensive as the other; and the boiler was, on delivery, accepted and paid for by the respondent. Subsequently the repairs now sued for were put on the boiler and the respondent files a cross-libel for a counter-claim for damages for breach of the original contract. Held, that such counter-claim does not arise out of the same cause of action for which the original libel was brought, as contemplated by admiralty rule 53.
To authorize a set-off, the debts must be between the same parties in their own right, and be of the same kind or quality, and be clearly ascertained or liquidated. Neither at law nor in equity can unliquidated damages be allowed under the defense of a set-off.
Bedle Muirheid & McGee, for libelants.
Griffin & Romeyn, for respondents and cross-libelants.
This is a libel for work done and materials furnished in making repairs to the boiler of the tug-boat Zouave. The boiler had been originally constructed by the libelants, under a contract between them and the owner of the tug, in which it was stipulated that the iron used in making the furnace and flue-heads should be of the best quality, known to the trade by the brand of 'E. L. F. B.,' which means 'Extra Locomotive Fire-box Iron.' The owner and respondent discovered, before the completion of the boiler, that the libelants were using another and different quality of iron from that agreed on, and complained of the change; but, on being assured by the libelants that the substituted iron was equally as good, and just as expensive, as the other, and not being himself a judge of the article, he waived further objections at the time, relying on the representations of the libelants, and notifying them that he would hold them responsible for any damage that might ensue from the change of material. The contract was entered into September 7, 1883 and the boiler was put in the tug about one year after that date, and was accepted and paid for by the respondent. From the schedules annexed to, and forming a part of, the libel it appears that the first bill for repairs was contracted in March, 1885, and that further repairs were made at intervals, until January of the...
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