
    William Treat v. Canal-boat Etna.
    Under tbe act providing for proceedings against steamboats and other water-crafts by name, where a person has engaged to build and deliver a boat at a future day, for a price named, and has delivered the boat in pursuance of such agreement, he can not afterward proceed against it, in the possession of a third person, to recover for “ materials, supplies, and labor ” expended in building the same.
    This is a motion for a new trial, reserved in Summit county.
    The facts of the case, sufficient to present the point decided, appear in the opinion of the court.
    S. J. Andrews and R. Hitchcock, for plaintiff in support of the motion.
    R. P. Spalding, for defendant, contra.
   Avert, J.

This cause was tried at the September term, 1846, of the Supreme Court in Summit county, when a judgment was rendered for the plaintiff. Upon a writ of error prosecuted in behalf of the defendant, this judgment, at the December term following of the court in bank, was reversed, and the cause remanded to Summit county. It was *again tried before the Supreme Court in that county, at the September term, 1847, when a verdict was rendered in favor of the defendant. The plaintiff thereupon filed his motion for a new trial, and the motion was reserved for decision here. In the ease in error, above referred to, 15 Ohio, 585, the precise question was determined which arises in this case. But the counsel for the plaintiff desired that the question might be heard again in bank, and the court who tried the cause in the county, were disposed to give another opportunity to examine the subject here.

The question in the case arises under the act providing for the collection of claims against steamboats and other water-crafts. Swan’s Stat. 209. And the words of the act, touching the matter in hearing, are as follows: “That steamboats and other water-crafts, navigating the waters within or bordering upon this state, shall be liable for debts contracted on account thereof by the master, owner, steward, consignee, or other agent, for materials, supplies, or labor, in the building, repairing, furnishing, or equipping the same.” The facts of the ease may be found in 15 Ohio, 536, where it will be seen, that Standart, Griffith & Co., in 1840, contracted with the plaintiff, Treat, for two canal-boats, at 81,075 each. According to the contract, Standart, Griffith & Co. were to furnish from their hardware store whatever materials the plaintiff should want, and pay him 8500 on the delivery of the boats. The balance was to be paid as the boats should earn it, and tho plaintiff did not expect the whole of his pay that year. Materials from the hardware store were furnished as agreed, and the boats were delivered. But the contract price of the boats was not paid; and some two years after the delivery, a considerable balance being still due, tho present suit was brought

The water-craft, it is in this statute provided, shall bo liable for debts contracted on account thereof, by the owner. Who, in the sense of this statute, is the owner, made liable for materials or labor in building the boats? The court, at the last term, answered, that Treat, the plaintiff, was the *owner, until he parted with his ownership, by delivering the boats over to Stand-art, Griffith & Co.; that for the timber and other materials furnished, and for the wages of tho workmen employed in building the boats, Treat was liable, and not Standart, Griffith & Co. It still appears, to a majority of the members of the court, who participate in the trial of this motion, that Treat was the owner of the boats while they continued in his possession, and that the former decision was right. The argument, furnished at this term for the plaintiff, admits that if a man build a boat for the market generally, and afterward finds a purchaser, he would not have a lien under this statute. Such a purchaser, we think, also, is clearly not an owner within the meaning of the statute. And the builder, in that case, would have no security, except in his contract of sale. Can it be said of the purchaser, either in that ease, or the one under consideration, that he is liable for the debts contracted on account of the boat, to the persons who furnished the timber and materials for the boat, or to tho persons who were hired by the boat-bitildor to aid in building it? We think that a suit could not bo successfully prosecuted against either of them. But we think that a suit for materials or labor would lie against the builder, and that it could clearly bo maintained, under this statute, against the boat in whatever hands she might be found. Upon this last point, neither the language nor meaning can admit of any doubt. Now, under the construction claimed by the plaintiff, this right might be defeated, if the sale, under the builder’s suit, passes the title of the boat, and it may be a much larger interest than that of the builder. The bulk of the materials may have been furnished, and the principal part of the labor performed, by others; and still this contractor, under the name of builder, after he has delivered over the boat, is to enforce his lien for the whole of the contract price, to sell the boat and receive himself the money, leaving others, whose claims, perhaps, are much larger, with no resort but to his personal responsibility. This lien of the builder, if it exists at all, *is for the whole cost of the boat, or rather for the price which has been fixed in the contract, and not for the proportion which he, as distinct from others, actually contributed toward building the boat. Now, as between the claimants, he who seeks, as in this case, to engross the whole security, did not need, in the same sen'se as did the others, that a specific lien should be given to him by statute; for he could provide by the terms of his contract,- or, having the identical security already in his possession, he could retain it till his claim should be made otherwise secure. There are, nevertheless, reasons, and not without considerable weight, for extending the paling of this law to builders, who may be supposed always anxious to obtain employment in their trade. But these reasons must be addressed to the legislature, who can limit and shape the relief as circumstances may require. The claim set up by this plaintiff is one, as wo believe, not embraced within the meaning of the law under consideration, and therefore his suit can not be maintained.

Motion for a new trial is overruled.

Hitchcock, J., having been counsel for one of the parties, did not sit i'n the case.

Read, J.,

dissenting. If a person contract to build a boat, and deliver it to another at a specified time for an agreed price, the builder has a lien upon such boat under the statute. The person for whom the boat is built, although not absolute owner until delivery, is yet the owner within the meaning of the statute, from the moment the boat is commenced being built, for the purposes of the lien. Any other construction would completely defeat the statute in its most material part. I do not understand that the two judges who have made this decision at the present time, deny the correctness of this construction. With this construction the statute is preserved, and the lien of builders secured. But I understand that the judges wish now to take the distinction, *that if a person build a boat upon his own account for the purpose of sale, and then sell it, no lien attaches, as against the vendee, in favor of the vendor or builder. To this view of the statute, there is perhaps no objection. But I understand that the contract under which it is claimed in this instance that the lien of the builder attaches, was in substance this, that Treat should build the canal-boats, and deliver the same to Standart, Griffith & Co. for SI,075 each. The boats were then built in pursuance and in completion of the contract; and this brings the case within the first proposition, and gives the builder his lien. I do not understand it to be the case by the owner of a boat-yard, building boats upon his own account for the market. But the two judges who acted upon this case, when up for consideration heretofore, acted upon wholly different reasons from those now stated by the judges ; although I do not know whether these reasons prominently appear in the opinion of the court.

The instructions of the Supreme Court given to the jury on the trial in the county, which was held to be erroneous heretofore by the judges in bank, were as follows : “ If .they found from the evidence that the plaintiff, Treat, built the boat by contract, for Stand-art, Griffith & Co., at a specified price, and delivered her under the contract, a liability attached to the boat in favor of said plaintiff, under the act of February 26, 1840, entitled an act for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name, and the plaintiff was entitled to recover in this suit.”

The whole reasoning of the court in this case was, that the above charge involved the absurdity that Treat, being both owner and builder, it permitted him to contract with himself, and sue himself, and therefore was erroneous. The court say in that opinion : “ Treat had contracted to build her, and deliver her at a particular time. Before the delivery she was undoubtedly his property. Ho was the owner, and had the absolute control of her.” Again, ‘'Treat could not contract with himself, to furnish himself *materials for his own boat, any more than he could sue himself for breaking such contract. Both ideas are absurd, and not one more so than another.” The whole reasoning here is predicated upon the assumption that, on a contract to build a boat and deliver it at a specified time, for an agreed price, that up to the point of delivery, the builder was the owner, and therefore could not contract with himself for labor and materials, and hence that no lien could attach upon the boat in his favor. If that ground be now abandoned, and it be admitted that where a person contracts for the building of a boat for an agreed price, to be delivered at a specified time, a lien attaches, the two judges, in deciding at the present term, have most certainly erred; for it is not disputed but that the contract under which the boat was built, is of that sort, and if it be disputed, let the contract speak for itself; and upon that construction of the contract, the court charged upon the circuit; and the charge was not questioned upon the facts—for they were for the jury—but upon the inference of law. So that if the judges abandon the position taken in the decision of the judges heretofore pronounced, they have now most certainly erred in the conclusion formed; for the judgment now is the same as then, and the facts before the court the same : that the boat was built for Stan dart, Griffith & Co., time of delivery and price specified. If the construction heretofore given be adhered to, the statute, in its substantial part, is a dead letter, and its main object totally defeated. If that construction be abandoned, then the conclusion of law and judgment of court in this instance, are directly against the fact which the court admit should give a lien under the statute. To admit the facts and deny the law which applies to such a state of facts, is only an obscurity of reasoning which unintentionally works a wrong in an individual case, but does not work the general mischief of overthrowing a salutary statute.

But if it be contended that no lien attaches in case of building a boat on a contract, because, up to the time of *delivery, the builder is the owner, it may be replied with equal force that no lien attaches to a part of a boat. The statute says that the lien shall attach to the boat; and hence the lien would only attach after the boat was complete, and begin to operate eo instanti that it was delivered to the owner. But it is said that this construction would bo monstrous, as it would defeat the liens of all persons who had labored upon the boat and furnished materials during her construction. Equally so, I contend, would it be monstrous to deprive all the builders of boats of their statutory protection and remedy, because the boat was built upon contract. It is known from the very nature of ship and boat-building, from the number of hands, amount of material and machinery required, that ship and boat-yards exist for that purpase, and that master-builders own these yards, and that, almost universally, boats are built upon contract. The act had reference to the nature of the business; and the person contracting for a boat is, in universal acceptation, regarded as the owner; and for the purpo.se of security to the builder, the statute regards the person for whom the boat is built as the owner. Any other construction, it seems to me, is unreasonable, in reference to the nature of the business itself, and mainly defeats the object and intent of the statute.  