Steamboat Dictator v. Heath

The opinion of the court was delivered, January 7th 1868, by Thompson, C. J. The case of Walker v. Anshutz, 6 W. & S. 519, does not apply to this case. That was a contract to build and sell to the defendant a steamboat for a certain sum. It was held that the Lien Law of June 1836, relating to vessels, did not apply to a builder of a vessel under a contract to build and deliver for a fixed price. This was a proceeding under the Act of 20th April 1858, for work and materials furnished on a contract to build and finish a cabin on the steamboat “ Dictator,” for the defendant. That act allows a lien “ for all debts contracted by the owner or owners, agent, consignee, master, clerk or clerks of such ship, steamboat or other boats or vessels of whatever kind, character or description, for or on account of work and labor done or materials furnished by boat-builders, engine-builders, boiler-makers, lumber, [293] boat-stores and provision furnishers, carpenters, blacksmiths, &c., &c., in the building, repairing, fitting, furnishing or equipping such ships, steam or other boats or vessels,”. &c. The contract here was with the owners of the boat for building a cabin, and that was work and materials within the statute. It comes within the term building; if not, it comes within one or other of the terms repairing or fitting, or both. The steamboat was in the possession of the contractor, and the work was done on it while in his possession and control; and if the law allows no lien in such a case, there is nothing to prevent the owner going to sea without paying, and the. contractor would have no security. That there was a bargain for the work to be done, did not take the case out of the statute. Because done under contract, stipulating for what was to be done, it was no less a debt contracted for the use of the boat than if every piece had been contracted for separately. Even if notes had been given for the contract price before or after the work had been done, the boat would have continued liable to the lien and attachment process, by the express words of the statute, which shows the intention of the legislature to favor this mode of securing to mechanics and material-men the fruits of their labor and value of their property. It will be remembered that the act is special and applies only to boats and vessels navigating the Allegheny, Ohio and Monongahela rivers, and has rather more scope than the Attachment Act of 1836. We are of opinion that the reserved point was properly decided and the error is not sustained. There is nothing in the suggestion that the plaintiff was not such a mechanic or material-man as was entitled to a lien under the act. That does not appear. And it does appear that the defendants contracted with him as such, and they cannot assert the contrary. 2. Nor do we discover anything like error in the admission of the conversation of Captain Donaldson, part owner and contractor for the work. He had, by the contract, the right to direct the manner and style in which the work was to be done. And if he directed it to be done in a more expensive manner or style than the model agreed on, viz., of the cabin on the “ Missouri” or “ Mississippi,” the contract referring to the former, and the testimony to the latter, and agreed to pay for it, the defendants ought to be held for it. The lien would extend to that as well as to any other work done. The testimony of Gullett, if believed, showed very clearly the increased cost of performing certain parts of the work over the mode provided by the contract, and the order of Captain Donaldson that it should be done in the way it was done, and his promise to pay for the extra expense. To admit such evidence did not impeach the written contract. 3. When Isaac Gullett was sworn there was nothing appearing [294] against his competency. If anything showing a contrary state of the case came out afterwards, the court should have been asked to strike out his testimony or to charge the jury that it must be disregarded by them. That was not done ; although it might have been. But the remark of the witness on cross-examination rested upon to show interest, was coupled with another, which fully counterbalanced it, and as both must be taken as part of the same declaration, it was for the jury to say which was correct or whether both or either were or were not. We see no error in this part of the case. There being no error in the record, the Judgment is affirmed.