The Sappho

BBAWLEY, District Judge. These cases were heard together, and the controversy arises out of a contract for repairs of the steamer — 367 — Sappho, owned by the respondent company, a corporation duly chartered by the state of South Carolina for conducting a ferry between the city of Charleston and Mt. Pleasant and Sullivan’s Island; the Sappho being employed in such service. The libelant In the case first entitled is a shipwright, and the libel claims a balance due for work done and materials furnished in sucli repairs. The libelants in the second case are merchants, and I heir claim is for materials furnished to the first named libelant, and used by Mm in the repairs. Air. C. O. Witte is chairman of the board of directors of the respondent company, and as the case has given rise to unfortunate differences of opinion, and an apparent conflict of testimony between Mr. Pregnall and himself, it may be as well to say that both are men of the highest character, and neither would knowingly stale what was untrue. A. contract in writing and under seal was entered into February 25, 1897, between the libelant. Pregnall and the company. Tins contract is not referred to in the libel, but is set up in, and made a part of, the answer; and a proper understanding of the questions raised requires its consideration. Ah inspection of it shows that at the time it was entered into ttie precise extent of the repairs needed was not entirely known. The first clause provides for such as were specifically known, and embraces 1.1 items in all. The second clause' provides for the payment of the sum of .$2,000 for the work and material (unbraced in the first clause, upon certificate that there are no liens of any kind on account thereof. The third clause provides for such additional repairs as it was supposed would be found necessary, but, as the exact amount thereof was not known, the three items embraced therein were to be paid for as follows: (1) The taking out of defective and substituting of new timber, "such ns floors, futtoeks, and top,” at $1 for the running foot; (2) replacing of ceiling, at: 30 cents for the running foot; (3) (he taking out of defective planking, and renewing same, at 60 cents for the running foot. The fourth clause provides for the payment of amounts found to be dae under The third clause, upon certificate of no liens. The fifth clause provides that all the material furnished and work done under the first and third clauses shall be of the best quality, and subject to the superintendence and approval of the company, and also of the United Hiatus inspector of hulls. Having thus provided for the known and for the probable needs of the vessel, provision was made for the unknown and possible needs in the sixth clause, which is as follows: “Sixth. No new work of any description done on the said steamer, or any work of any kind whatever, shall he considered as extra, unless a. separate estimate in writing for the same, before its commencement, slia.ll have been submitted by the, contractor to the proprietor, and tlie signature ol’ the chairman of its board of directors obtained thereto; and the contractor shall demand payment for such work immediately after it is done. In case of day’s work, statement of the same must be delivered to the proprietor, at latest, during the week following that in which the work ma.y have been done; and only- such day’s work and extra work will be paid for, as such, as agreed on and authorized in writing.” The controversy comes from an alleged agreement subsequent to the written contract, which it is claimed was made between S. J. Preg — 368 — nail, the contractor, and C. O. Witte, the chairman of the ferry company, — an agreement positively asserted on the one side, and as positively denied on the other. It occurred in this wise: After the Sappho was put on the marine railway of the contractor, and stripped, as appears from the testimony of Cherry, the master, she was found to be in worse condition than he expected. He discussed the matter with Mr. Bird, one of the directors, and told him that he thought it would be cheaper to cancel the contract with Pregnall, and get him to build a new hull, which he thought would cost about $10,000. Bird advised him to see the president. He went down to see him, and informed him of the condition of the boat; and his reply was that he was sorry he had not known it sooner, and that they would have to do the best they could. After informing Pregnall of this conversation, they went down together the next day to Mr. Witte’s office, and Mr. Pregnall gives this account of the interview: After saying that the vessel would have to be rebuilt, in reply to the question, “Did you describe this condition of affairs?” he answers: “I did, and so did Captain Cherry. After consulting a time, he wanted to know if I could do that work in time to save tlie season; he then considered the cost of a new boat against rebuilding that one. T suggested that by taking out the machinery I could save $4,000 or $5,000. I did offer to build a new boat — hull—for $11,000. They decided then that I should go on, and make' the' old hull new. Mr. Witte told me, ‘All right; go ahead.’ I told him I did not have the means to do that much work. He said he would furnish me the means every week to pay my men, which he did, and I went along with the work and completed it.” And this is Mr. Witte’s account of the same interview: In reply to the question whether he remembered tlie occasion, and to state just what occurred, he answers: “I remember it distinctly. Capt. Cherry and Mr. Pregnall came down to the office, as they said that the vessel was not in as bad a condition as represented by some people, — making mention of some certain parties at the time, — and that she could be repaired, and be a stronger and stouter vessel than before; stating that, putting these keelsons on, and which were in the contract, the vessel would be stouter and better than before. The question about how much it would cost to build a new hull came up in this way: As some people said it would be cheaper to build a new than repair the old, this was reported to me that such had been said; and I asked Mr. Pregnall how much could we build a new hull for. and he said $11,000, and I said, ‘Well, I was told it could be done for $8,000 or $9,000.’ He said his price was $11,000.” Replying to tbe question, “Did you, in consequence of that conversation, say, ‘All right; go ahead’?” he answers: “No; I told them after that that we concluded to go on with the contract, —that was the result of the conversation, — and finish the vessel, and finish it in the time agreed upon; and not a word was said about the boat, and that the ferry company had plenty of money. Everybody knew it hadn’t. And I had no occasion to say the bank had plenty of money. Everybody knew it had.” The last part of this answer obviously refers to testimony previously given by Cherry, wherein, in replying to questions as to why he had acquiesced in certain work being done which was outside the contract, he- had said that it was because Pregnall had informed him that he — 369 — was authorized by Mr. Witte to do it, and supposed he had made a written contract, and had repeated as Mr. Witte’s some expressions of this nature. Capt. Cherry, the only witness present at this interview', replying to the question, “At the time that Mr. Pregnall went with you to O. O. Witte’s office, did you understand from what Mr. Witte said in Mr. Pregnall’s presence that he was authorized to do any work he pleased outside of this contract?” answers, “No.” “Question. Did C. O. Witte authorize Mr. Pregnall to do any work outside of this contract? Answer. Not as I know.” The above is substantially all of the testimony contained in the record relating to what occurred at the interview wherein it is claimed that the old contract was set aside and a new one entered into, and the precise question to be determined is whether it is sufficient evidence to support the contention. The old rule of the common law laid down in the Countess of Rutland’s Case, 5 Coke, 25b, that “every contract or agreement ought to he dissolved by matter of as high a nature as the first deed,” has been so far refined by distinctions intended to mitigate its rigor in particular cases, and so chipped away, as to be no longer controlling; .and it may now be considered settled that the terms of a contract under seal may he varied by a subsequen t parol agreement; that, where there is nothing in the nature of the contract itself requiring it to be in writing, there is no principle which requires the new one to be in writing; and some courts of high authority say that attempts of parties to tie up by contract their freedom of dealing with each other are futile. Rut, where parties have hound themselves by a written agreement, that agreement remains, and must he the measure of their rights, unless both, parties agree to an abandonment or dissolution of it. Mere negotiations for a variation in the contract will not amount to a waiver of it; for, as every contract, is the result of an agreement of minds, a like agreement of minds is needed to dissolve it. Unless both parties in such negotiations understand alike, there is no meeting of minds, no contract; or, as Mr. Justice Miller says in Wheeler v. Railroad Co., 115 U. S. 34, 5 Sup. Ct. 1063: “It is to be observed that to annul or set aside this contract, fairly made, requires the consent of both parties to it, as it did to make it. There must have been the same meeting of minds, the same agreement to modify or abandon it, that was necessary to make it.” That Mr. Pregnall understood that the old written contract was abrogated in so far that he was thenceforth to go ahead and do all the work that he thought necessary is clear, but that is not enough. It takes two to make a contract, or to unmake it, and Mr. Witte says positively that he did not make any agreement or give any authority to do any work outside the written contract. Capt. Cherry, the only witness present at the interview, says that he (lid not understand that any agreement was then made for any work outside the contract. This evidence falls very far short of the proof necessary, to support a contract, nor is its exiguity strengthened by the doctrine of probabilities. The chairman of the board of directors of this company is a cautious business man, who hut a week or two before had required its — 370 — attorney to reduce to writing, with great particularity, every item of repairs known to be required, and provided with equal precaution for every item that would probably be required, and for the unknown but possible repairs had stipulated expressly that no new work of any kind whatever should be done, unless a separate estimate should be submitted by the contractor to the company, and the signature of the chairman obtained thereto, — a stipulation which the testimony shows was expressly brought to the attention of the contractor; and the court is asked to believe that without any stress of extreme urgency, without any new consideration, he agreed to abandon all those limitations and safeguards which the company, through its attorney, had thought necessary to incorporate in Lo a written and formal contract, —to open the doors, in other words, for an expense of which there was no calculation, and of which the only measure was the will of the contractor. The weight of proof and the weight of probability are against such contention. The true explanation is probably this: It appears from the testimony that Capt. Cherry, when he discovered that the condition of the Sappho was worse than was expected, had so reported to the chairman of the board, and had talked with him, as he had with, others, of the advisability of building a new hull, and of abandoning the contract for the repairs of the old one; but at the second interview Mr. Witte says he reported that it was not as bad as he had thought the first day.' This was the interview at which Mr. Pregnal 1 was present; and although there was some talk of building a new -hull, and of the cost of it, the conclusion was to go on with the repairs of the old one; the understanding of two of the parties being that the repairs were to be made in accordance with the existing contract, and the understanding of the contractor being that he was authorized to do such' additional work as the exigencies required. As explanation of the reasons why this new contract was not put in writing, Mr. Pregnall says that he would not insult Mr. Witte by asking him to put his contract in writing; but why Mr. Witte should be insulted by being asked to do what he had expressly stipulated should be done is not explained. Being fully satisfied that there was no formal agreement to renounce the old contract, it remains to consider whether the parties are estopped by their conduct from setting up the contract. Oases of high authority have been cited to support the proposition that parties may renounce a contract in any way they see fit, and that they can substitute a new oral contract by conduct and intimation as well as by express words. Bartlett v. Stanchfield, 148 Mass. 394, 19 N. E. 549; West v. Platt, 127 Mass. 367; O’Donnell v. Clinton, 145 Mass. 461, 14 N. E. 747. Passing by the question whether a corporation would be thus affected unless there was some proof that the conduct of its officer or agent was within the scope of some delegated power, let us see whether there is such proof of acquiescence or ratification as will estop this company. That the new work was done with the acquiescence and approval of Capt. Cherry is'not denied. Whatever may be the powers of the master of a vessel in a foreign port to bind his. ship by his contracts for repairs, it cannot be claimed that he had — 371 — any such power here. His vessel was out of commission, and, though t here seems to have been an understanding that he was to exercise a sort of supervision over the repairs to be made under the written contract, it is not contended that he; had any power to make or renounce such contract; and his testimony is that, in so far as any work was done; whie?h was not; embraced in the written contract, his acquiescence therein was due to the statement of the contractor that he had special authority from the chairman of the board of directors. Acquiescence under such representations cannot bind the; company. There is no proof of any knowledge on the part of the chairman of the board of directors of any work being done' outside of the contract until after it was completed, and wheat' tlmre was no knowledge there could be no acquiescence. Theme is testimony that on May 5th he wrote a letter to Oapt. Cherry, telling him to Inform Mr. I’regnall that some joiner work was not. authorized by him, and that unless they could come to a written agreement lie; would ask for estimates from other parties; and his testimony is that until the hill was handed to him he was not aware; that any work had been done which was claimed to be e'xtra and outside; of the written contract. The case does not fall within that class of cases whore persons standing by and seeing work done from which they receive benefit are est.opped from denying their obligation to pay for it, or where failure to respond to inquiry is sometime's laid to be; some small evidemce of want of good faith. Theme can be; uo estoppel from the mere silence of eme of the parties to a contraed, wheui by its terms nothing remains to be done; until the time for paymemí; comes. Silence, to create estoppel, must be inconsistent with any other e'xplanat ion. An ingenuous e'ffort is made to piece out the paucity of proof on this line; by showing that all of the extra work was necessary in order to make the vessel safe; and sound, anel as the work was done under the supervision of the United States inspector of hulls, and was thought by him to be; nece;ssary, the cemipany is therefore; bounel. Sections 4445, 4448, 4453, 4454, dedining the duties of such inspector, etc., are; cited. They do not seem to me to have any bemring upon the; point of this cemtroversy. They dememnee certain pernal lie's and privations against; masters and owners who fail to comply with the law which is inieuielcd to secure safety in navigation, anel the' inspertur was clearly within the law, in pointing out any defends anel imperfeediems which berame apparent upon his inspection, and which tended to render the; ve'ssel unsafe', if the master or owner failed to comply with his requirements, certain pernaltie;s are imposed; but he cannot interfere with an owner’s liberty of contraed for such repairs, or make or unmake contracts for him, whieth is the question here'. The case of Cunningham v. Fourth Baptist: Church, 159 Pa. St. 620, 28 Atl. 490. is cited as be'ing on all fours with this. I do not so cemsidcr it. This was the case; of a corporation whiedi entered into a written contraed for certain alterations and adelitions to its building's, anel there was a provision that no work shemld be paid for, unle;ss agreed to in writing signed by the parties. During' the progress of the; work a e-ertain ediange in the struedure; of the stonework, which, iu the language of the court, was ‘‘prompted by considerations — 372 — of safety, and ordered by officers of tbe city, invested to a certain extent with tbe police power of tbe state, as to which neither the owner of the building nor its architect or contractors could exercise any option, and which had to be obeyed, was obeyed,” necessitating an increased expenditure. The changes were made under the plans and direction of the architect of the defendant corporation. It was decided that the plaintiffs were entitled to recover for the expenditure incurred in this extra work, the court saying, “They did so in good faith, with the knowledge and acquiescence of the corporation defendant, and under the direction of its architect.” This case would furnish a rule for guidance if there was any proof that the inspector of hulls had- furnished a statement of the needed repairs, and the ferry company had instructed its architect or agent to prepare the necessary specifications, and had acquiesced in and accepted the work with full knowledge; but there is no such proof; there being no knowledge or acquiescence, except by Cherry, which it is claimed was due to misrepresentation.' It would serve no good purpose to review in detail the great number of cases cited by the learned counsel for libelant. The one just referred to seemed to be considered the strongest in support of his view. That extra work, when ordered, must be paid for; that a verbal contract may supersede a written one; that parties may sometimes, by conduct, by acquiescence, or by ratification, be bound, even in the absence of contract, — are abundantly established by them; but, conceding that they do establish the principle to the fullest extent claimed, they do not help to the solution of the pivotal question, which is whether, in the absence of sufficient proof of agreement, knowledge, acquiescence, or ratification, a party to a written contract is bound’ to pay for extra work when there is an express stipulation that he should not be so bound except under the conditions admittedly unperformed. Appeal is made to the principles which govern‘■courts of admiralty in the exercise of their jurisdiction; that they are not bound by the strict rule of the common law, and can determine cases submitted to their cognizance upon equitable principles, and according to the rules of natural justice. It needs hardly to be said that, as a question of conscience, no man ought to get the benefit of another’s labor without paying for it; and counsel know that I have strenuously urged upon them a settlement of this case out of court. While a court of admiralty construes instruments as a court of equity does, with a large and liberal indulgence, and while, in the large majority of cases which come within its cognizance, it has both the right and duty to do what it conceives to be justice, yet in matters of simple contract, where parties legally competent have bound themselves in an agreement whose terms are so plain that there is no room for construction, it is bound, as all courts are bound, to compel performance, and has no dispensing power. Mr. Justice Swayne says in The Harriman, 9 Wall. 173: “Thé answer to the objection of hardship in all such cases is that it might have been guarded against by a proper stipulation. It is the province of the courts to enforce contracts, not to mate or modify them.” — 373 — There is nothing in this contract which makes it peculiarly a subject of admiralty cognizance. It is like the old action of assumpsit on a quantum meruit. A change of forum does not alter the rules of law which must govern its determination. It appearing that ihe money due upon the written contract has been fully paid, an order will be entered dismissing the libel, but without costs. The libel of William M. Bird & Co. will next be considered. It was expressly stipulated in the agreement between Pregnall and the ferry company that all the materials and supplies should be furnished by the contractor, and that, before any payments were to be inside1, the contractor was to furnish a certificate that there were no liens of any kind whatever upon the vessel. The testimony shows that Bird was a director and the secretary of the ferry company, and his partner, Welch, read the contract. The vessel was in her home port. Under the general maritime law there is an implied lien for supplies furnished io a vessel in a foreign port upon the order of the master, there being a presumption that they are furnished on the credit of the vessel; for, as was said in an early case: “The vessel must got on,” and “the necessities of commerce require that, when remote from the owners, he Lthe master] should be able to subject tlu: owners’ property to that liability without which it is reasonable to suppose he will not be able to pursue his owners’ interests.” The Aurora, 1 Wheat. 96. As no such necessity could be supposed to exist in the home port, it was long held that (his lien for supplies did not attach at the home port of the vessel. To obviate .Bus apparent injustice or inequality, many of the states have passed laws giving to (heir residents liens upon vessels for labor performed or materials, furnished. Of this class of Muhiies is (liat contained in section 2504 of the Revised Statutes of South Carolina. These liens have been repeatedly held to be valid and enforceable by proceedings in rem in the admiralty courts of the United States, as being maritime in their nature. It is only because (hey are of this nature that courts of admirahy would have; jurisdiction to enforce them. The Lottawana, 21 Wall. 568; The Planter, 7 Pet. 343; The J. E. Remble, 148 U. S. 1, 13 Sup. Ct. 498; The Kate, 164 U. S. 470, 17 Sup. Ct. 135; The Glide, 167 U. S. 610, 17 Sup. Ct. 930; The Samuel Marshall, 4 C. C. A. 385, 54 Fed. 402,— contain elaborate discussions of the principles which govern the courts of the United States in this class of cases. The conclusion reached by me, as the result of them all, is that liens created by state laws for repairs and supplies in the home port are accorded the same precedence as liens for repairs and supplies in a foreign port under the general maritime law; that the true limits of maritime law is a judicial question, and no state law can enlarge or narrow it; that, in enforcing such liens given by the state law, the courts of the Uni ted States are governed by the principles and restrained by the limitations which ordinarily attach to liens in admiralty; that these liens all rest upon the principle that the supplies are furnished to the sldp upon the credit of the ship herself, to preserve her existence and secure her usefulness for the benefit of all having an interest in her; — 374 — that by enforcing the liens the courts do not adopt the statute itself, or the construction which courts of common law or equity might place upon it when they apply it, but put them upon the same footing with all maritime liens, as if they are created by maritime law, and, inasmuch as liens are allowed under the maritime law because they are presumed to have been furnished on the credit of the ship, it must follow that whenever it clearly appears that they were furnished either upon the credit of the owner or upon the credit of the contractor there is no lien upon the ship. If these conclusions are correct, Bird & Co. can have no lien. The contract between Pregnall and the ferry company is inconsistent with the claim of a lien upon the vessel, for it is expressly stipulated that there should be no lien. Bird & Co. furnished supplies to the contractor, and were aware of the fact that by the terms of this contract Pregnall was to furnish the supplies, and that there was to be no lien on the vessel therefor. That they made an entry in their books that the supplies were for the Sappho can make no difference, for the courts have repeatedly held that this is a mere self-serving practice, of no weight in the determination of the question. I am of the opinion that there is no lien, and the libel must therefore be dismissed, with costs.