McClellan Dry Dock Co. v. Farmers' Alliance Steamboat Line

The opinion of the court was delivered by Fenner, J. The-steamboat “ G. W. Sentell” was docked and repaired by the plaintiff, under a written agreement between plaintiff and B. W. Marston, which stipulated that plaintiff was to dock her for $75, charge $10 per day demurrage, and that “ all work and materials to be by the day, subject to any and all inspectors the owner may see fit to send.” The work was done under the supervision and direction of Capt. Boardman and Ben. Hopkins, designated by Capt. Marston to represent him in the work, and also of the official inspectors of the United States and of the Board of Underwriters. When the work was done and the bill therefor was presented, Capt. Marston refused to pay. Plaintiff declined to permit the boat to leave without payment or security, whereupon a bond was furnished. The principals named in the bond are “B. W. Marston, individually and as president of the Farmers’ Alliance Steamboat Line, and others interested with them';” and the surety was G. W. Sentell & Co. The condition of the bond was, “ that if said principals shall well and truly pay to said McLellan Dry Dock Company the amount due them by said steamboat G. W. Sentell, its masters and owners, for the services aforesaid, to be fixed by agreement if possible, and if not, by suit at law, then this obligation to be null, otherwise to be of full force and virtue.” The present suit was brought upon the contract and bond for the amount of plaintiff’s bill, and judgment was asked in' solido against the Farmers’ Alliance Steamboat Line, B. W. Marston individually, and G. W. Sentell & Co. All the defendants were cited, and, interposing no exception, they all appeared and pleaded by answer to the merits, and by a plea in reconvention. The gravamen of the defence was that the plaintiff’s bill was excessive and beyond the value of the work done and material furnished. Immediately after filing answer, the defendants moved the court for the appointment of experts, one to be selected by defendants [261] and one by plaintiff, and in case of disagreement, one by the court, with directions “to examine and report to the court the character, value-and amount of the repairs made on the G. W. Sentell by the plaintiff, the report of said experts to be used on the trial of the case before the jury.” The motion was. granted, and accordingly, the plaintiff and defendants each selected an expert. They did not disagree, but united in a report substantially affirming the correctness of the bill sued on. The case was tried before a jury which was prayed for by defendants, and - resulted in a verdict in favor .of plaintiff for the full amount claimed, and rejecting the reconventional demand. From the verdict and judgment thereon the present appeal is taken. Defendants, in this court, assign several grounds of error: 1. They claim that B. W. Marston, personally, was not a party to the suit, and that the judgment against him individually can not stand. The prayer of the petition conclusively negatives this contention, because it expressly prays for the citation of B. W. Marston, personally, as one of the defendants, and for judgment against all the defendants in solido, and upon the back of the petition service is accepted by counsel for the defendants, and the defendants all answer. The defect of the petition in not alleging specifically that Marston was indebted is cured by the annexing of the bond, which was made part of the .petition -and which exhibited his liability, by his answer without exception, and by the administration of proof without objection. 2. It is claimed that, if subject to any judgment, Marston is only liable as a joint principal, and was erroneously condemned in solido. We think it sufficiently appears from the tenor of the bond that the principals signed as owners of the G. W. Sentell, and Marston’s own testimony shows that he was one of the owners, if not sole owner. The boat was employed by the owners in the carrying of passengers and personal property for hire, and these repairs were made in the course of such employment and for the purpose of enabling her to continue the same. Under our Code it is well settled that joint owners of a steamboat employed in carrying personal property or passengers for hire are, in all transactions connected with such use, as to third persons, commercial partners, and liable in solido. Rev. C. C. 2825; 5 An. 260; 3 An. 88; 1 An. 836, and'many other cases. This suffices to fix his solidary liability. [262] 3. The verdict is assailed as being informal and void for want of certainty. The verdict is in these words: “We, the jury, find a verdict for the plaintiff, with interest from date of bill, for full amount of claim.” It is true that Article 522, C. P., prescribes that the form of 'a general verdict if in favor of plaintiff is “ verdict for plaintiff for so much, with interest.” Equally true is it that we have frequently held that “a verdict not stating the amount in exact terms or their equivalent is bad.” Miller vs. Cappel, 39 An. 882. But it would be stretching strictness beyond reason or-precedent to hold that this verdict does not express the exact amount as clearly as if it had been written in figures. The “ full amount of plaintiff’s claim” admits of neither doubt nor uncertainty. It is expressed in the prayer of the petition as “the sum of $7899.21, with legal interest from 22d December, 1888, until paid, subject-to the credit by $602.30, as of date the 3d January, 1889.” But while the verdict is good, the judgment rendered thereon is unquestionably bad. It allowed $7899.21 without deducting the credit admitted on the face of the claim. This, of course, was error, a mere blunder, but one which, by the signature of the judgment, acquired executory force against the defendants, from the effect of which they had the right to claim relief by appeal. Had the plaintiff entered his remittitur in the lower court before appeal, he would have left the defendants no ground of complaint on that score. But he has only entered his remittitur in this court after the appeal has been perfected and filed here. This can not deprive defendants of their rights to have the judgment amended and, as a consequence, to have the costs of appeal cast on plaintiff. 4. The length of our opinion on the facts of the case shall be in inverse proportion to the length of time which we have devoted to a patient study of the voluminous evidence, and the minute and extended criticism of all its details' presented in the oral and written arguments of defendants’ counsel. We think the claim of plaintiff is fully proved. The evidence in its support is complete and convincing. The experts, whose appointment was provoked by defendants and one of whom was selected by themselves, agreed in a report sustaining the plaintiff. The jury, which was prayed for by the defendants, approved it by their verdict. The judge, who presided over the trial and heard the [263] witnesses, confirmed it by his judgment. The opposing evidence submitted by defendants is weak and inconclusive, and the infirmity of their case is rendered conspicuous by their failure to produce the only witnesses who might have effectually contradicted the testimony of plaintiff, viz: Hopkins and Boardman, who represented defendants in the progress of the work* and were familiar with all its details. These witnesses were accessible, and their absence can only be explained by the fear of defendants that, like the expert they had selected, their evidence would support the plaintiff’s claim. 5. The reconventional demand has no merit. It .is based substantially on two charges, viz: first, that the plaintiff delayed the docking of the Sentell beyond the time agreed on; second, that plaintiff consumed unnecessary and unreasonable time in making the repairs. Neither charge is sustained. The evidence conclusively shows that plaintiff informed defendants that the steamer “E. W. Cole” was to be docked before the “ Sentell,” which latter should be taken as soon as the “ Cole” was finished. This was complied with. There was some delay in getting the “Cole” in dock, owing to reception of two other vessels before her, presumably in fulfilment of prior engagements. No complaint of this delay was made at the time. The work was prosecuted diligently and with all reasonable dispatch, and though the time consumed was longer than the parties anticipated, this was due to the fact that the repairs found to .be needed were much more extensive than was supposed. It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to conform to the verdict of the jury, and to allow a credit thereon of $602.20 with interest from January 3, 1889, and that, as thus amended, the same be now affirmed, plaintiff to pay costs of appeal.