Young v. Orpheus

• Decision Date: 27 November 1875
• Citation: 119 Mass. 179
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Joseph Young & another v. The Orpheus. Charles W. Lewis & another v. Same. Henry Jones v. Same

119 Mass. 179

Joseph Young & another v. The Orpheus. Charles W. Lewis & another v. Same. Henry Jones v. Same

Supreme Court of Massachusetts

November 27, 1875

Argued November 12, 1874 [Syllabus Material] [Syllabus Material]

Suffolk. Petitions to enforce liens under the St. of 1855, c 231, on the ship Orpheus, for materials furnished for and used in her construction in 1855 and 1856. The cases were tried together in the Superior Court, before Brigham, C. J., without a jury. The facts found by him, so far as it is material to state them, were as follows:

In August, 1855, Mitchell & Rice, ship-builders, having their place of business in Chelsea, made an express contract with William F. Weld & Co. of Boston, to build for them a ship of about twelve hundred tons for a specified price. The petitioners in each case, under an oral contract with Mitchell & Rice, delivered to them, at various dates from September, 1855, to February, 1856, at a price agreed, several cargoes of lumber, all of which was furnished for and in relation to the construction of said ship, and was actually used in such construction, except a few thousand feet, in each of the first two cases, of which a small part, but how much did not appear, was used in launching the ship at Chelsea, and the rest amounting in value to $ 411.68, in the first case, and $ 22.50 in the second, was subsequently sold by the assignees in insolvency of the estate of Mitchell & Rice, and its proceeds appropriated to the use of that estate.

By the contract with the petitioners in the first case, Mitchell & Rice were to have a credit of sixty to ninety days on the price of the lumber, and the lumber was not furnished by the petitioners upon the credit of the ship exclusively, but principally upon the credit of Mitchell & Rice, in view, however, of an ulterior liability of the ship and its owners for the lumber, upon the failure of Mitchell & Rice to pay for the same, which they had promised to do. In the second case, the lumber was furnished by the petitioner upon the credit of the ship. In the third case, the lumber was ordered by Mitchell & Rice, stating that they wanted it for the ship, and it was furnished primarily upon their credit.

At the time when the contract with each of the petitioners was made and the lumber furnished under it, the ship was in the course of construction at Chelsea. She was launched unfinished at Chelsea on February 29, 1856, and on the same day was taken to Lewis's Wharf, in Boston, where her construction was continued and completed, in hull, spars, rigging and sails, and a small portion of the lumber furnished as aforesaid by the petitioners was there used for making chocks for boats and other similar purposes.

On March 22, 1856, the ship, with a cargo on board, sailed from Boston for San Francisco, and did not return to Boston or to any port in Massachusetts until July, 1871, when she was detained by process in these cases. In the intervening time she was frequently in other ports of the United States, and her arrival there was announced in the usual mode in the newspapers, but there was no evidence that the petitioners had actual notice thereof.

On March 15, 1856, the ship was seized by the marshal upon process issued by the District Court of the United States for the District of Massachusetts, upon libels of these petitioners to enforce the same liens and debts. Upon stipulations of the respondents, the ship was delivered to them, and the libels were dismissed by the District Court, and by the Circuit Court of the United States upon appeal, because the courts of the United States had no jurisdiction in admiralty to enforce liens against the ship for labor and materials furnished before she was launched. The Orpheus, 3 Ware 143; S. C. 2 Cliff. 29.

The petitioners in the first and second cases filed in the office of the town clerk of Chelsea, on February 28, and March 19, 1856, and in the office of the city clerk of Boston, on March 25, 1856, and the petitioner in the third case filed in the office of the town clerk of Chelsea, on March 19, 1856, and in the office of the city clerk of Boston, on March 25, 1856, a certificate containing a statement, subscribed and sworn to by the petitioner, giving

a just and true account of the demand claimed to be due to him for furnishing said lumber for and in relation to the construction of the ship, with all just credits; except in the first case, as the account might be affected by the credit of sixty to ninety days as before mentioned; and in the second case that the footing of the account was erroneously stated at $ 462.83, when it should have been stated at $ 362.83, as appeared upon the face of the account by examining the items added up. Each certificate also stated the names of the persons with whom the contract under which the lumber was furnished was made, the names of the owners of the ship, and the name and description of the ship sufficient for identification; but in the first and second cases did not contain a statement containing a just and true account with all just credits of the quantity and value of the lumber furnished as aforesaid, which was actually used in the construction of the ship, but included all the lumber delivered as aforesaid under the contract.

The petitioners have not been paid any part of the amounts claimed in their respective petitions.

William F. Weld & Co., before these petitions were filed, either by payments in cash or by the discharge of liens claimed upon said ship, have paid to Mitchell & Rice the full price agreed for the construction of said ship, but none of such payments or discharges of liens have been for the benefit of the petitioners, or have operated to discharge the liens or pay any part of the sums of money claimed in these petitions.

Some years before the return of the ship to Boston, the firm of William. F. Weld & Co. was dissolved, William. F. Weld and William. G. Weld retiring therefrom, and Richard Baker, Jr., previously a partner of said firm, forming a new firm, under the style of William. F. Weld & Co., consisting of Richard Baker, Jr., and George W. Weld, of Boston, and Frederick Baker, of New York, of which dissolution and formation public notice was given in the newspapers, and thereupon the ship became the property of the new firm, which defends these suits.

Chelsea, in 1855 and 1856, had piers or wharves for the loading and unloading of vessels, houses and stores, and a municipal organization wholly independent of Boston, and by the U.S. St. of 1850, c. 79, an inspector of customs, and was within the revenue district for the purposes of customs of the port of Boston.

Upon the foregoing facts and their effect, the judge ruled "that the ship, within the meaning and scope of the St. of 1855, c. 231, was partly constructed in the port of Chelsea, and partly constructed in the port of Boston; that within the meaning and scope of that statute, the port of Chelsea was no part of the port of Boston, but another and different port therefrom, and that the removal of the ship from Chelsea to Boston, on the day of her launching, on February 29, 1856, was a departure of the ship from the port of Chelsea; that the certificates filed in the office of the clerk of the town of Chelsea on February 28, and March 19, 1856, were not so filed within four days 'from,' that is to say 'after,' the departure of the ship from the port of Chelsea, where she was when Mitchell & Rice contracted with the several petitioners the debts for which liens are sought to be enforced in these cases; and that the filing of the certificates on March 25, 1856, in the office of the clerk of the city of Boston, were within four days 'from,' that is to say 'after,' the departure of the ship from the port of Boston, on March 22, 1856, but were of no legal effect, she not having been in the port of Boston when the debts to which said certificates relate were contracted."

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