
    Charles Murr, Respondent, v. The Western Assurance Company of the City of Toronto, Canada, Appellant.
    
      Conversion —power of attorney construed — liability of the insurer of a canal boat held for repairs made in addition to those required by an accident.
    
    Where the owner of a canal boat, which has suffered an injury embraced within the terms of an insurance policy thereon, authorizes another to act for him in all matters pertaining to holding survey and repairing damage done to his canal boat, and to take care of the boat and do the best he can, the agent has power to direct that, in connection with the repairs to be made by the insurance company to remedy the injury,'other repairs necessary, and which could be then most conveniently made, be put upon the boat; and the insurance company, having paid for the repairs it was required to make, is not liable to the owner because of the refusal of the party who made the repairs to deliver the boat to him until the other repairs ordered by his agent are paid for.
    
      Appeal by the defendant, The Western Assurance Company of the City of Toronto, Canada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of April, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced on the lltli of September, 1896. The complaint charges the wrongful conversion of a canal boat. The answer is a general denial. At the close of the plaintiff’s evidence a motion was made for a nonsuit upon various grounds, and at the close of the testimony the defendant moved for the direction of a verdict in its favor upon grounds stated. These motions were denied, and upon exceptions taken to such denial, and upon the charge of the trial court, arise the questions to be considered upon this appeal.
    The facts appear in the opinion of the court.
    
      George Clinton, for the appellant.
    
      George W. Cothran, for the respondent.
   Ward, J. :

The defendant is a Canadian corporation having an agency in Buffalo. It issued a policy of insurance to the plaintiff upon his canal boat in the sum of §1,700, running one year. The risk covered by the policy embraced an injury to the plaintiff’s canal boat, which occurred on the 6th of August, 1896, while the plaintiff’s boat, which had loaded at Buffalo, was proceeding down the Erie canal; when near Pendleton, in Niagara county, on its trip to New York, with a cargo of wheat, it ran against something in the canal and was sunk. The defendant’s agents, Messrs. Smith & Davis, of Buffalo, were immediately notified of the accident, and they sent an age;it (Alfred Mayer) to look after the boat, and he took it to Buffalo for repairs.

The policy required that two competent surveyors sliorüd be appointed in such a case, one to be selected by each party, and that in case of disagreement they should appoint an umpire, whose duty it should be to make specifications in writing under oath, clearly stating both the amount of work and the manner in which it should be done to make the boat good for any damage caused by the disaster; that repairs should be made in pursuance of the statement made by the surveyors, which expenses should be borne by the insurance company, except that what was called an “ average,” which was based upon certain principles stated in the policy, should be borne by the insured — and in this case it was $100.

By consent of the parties, the boat was placed in the dry dock of one William Murphy, a boatbuilder, in Buffalo, to make the needed repairs, the surveyors having determined what repairs were necessary and made the written statement particularly specifying the same. About this time, Mr. Murr, the plaintiff, became ill and went to New York. Before going, however, lie appointed one Adam Homer his agent to look after the business in his absence, and gave Mr. Homer a power of attorney, in writing, which constituted Mr. Homer his true and lawful attorney in his name, place and stead, and, we quote : To act for me in all matters pertaining to holding survey and repairing damage done to my canal boat ‘ George Murr' in consequence of sinking in the Erie canal on or about August 6,1896.' Giving and granting unto my said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney or his substitute shall lawfully do or cause to be done by virtue thereof.”

That instrument was dated the 19th of August, 1896.

Mr. Homer accepted this agency and entered upon his duties. Mr. Homer testified that Mr. Murr was sick the afternoon that he gave him the power of attorney; that he (Murr) went with Homer to the office of the defendant’s agents and said he was going home; that he did not feel well, and adds : “ He told me to take care of the boat and do the best I could.”

While the plaintiff was gone Mr. Homer had sole charge of the business for him. The surveyor for the plaintiff was Mr. Cole; the defendant’s surveyor was Murphy. They went into the hold of the canal boat, accompanied by Homer, and made a thorough examinatian of it for the purpose of specifying the repairs necessary to be done.

In making the examination they discovered that many of the timbers of the boat were rotten. Her floor timbers, the timbers that go across the bottom of the boat and those that go up the top streak all Avere rotten, together with the timbers that Avere broken by the injury ; and many of the timbers not broken were rotten. The boat did not have a bilge keelson, which the surveyors thought Avas necessary. While they Avere looking the boat over they called Mr. Homer’s attention to this fact and to the rotten condition of the timbers, and Mr. Cole told him that then Axrould be the time to repair the boat Avliere it needed repairs, and it xvould be cheaper than at any other time after the necessary repairs to the damage caused by the sinking Avas done, because the floor was up and this portion of the keelson Avas up (the main keelson), and that the xvork could then be done cheaper and the boat Avould not liaAre to be torn up again; that those repairs would soon have to be made at all events. Mr. Homer agreed to this and directed Mr. Murphy to make Avhat repairs xvere necessary to replace the rotten timbers and place the boat in good condition, and not to coniine himself to the repairs absolutely necessary to repair the damage done by the accident. Mr. Homer, assuming to act as agent for the plaintiff, directed Murphy to make all of these repairs. These extra repairs amounted to several hundred dollars, about a third of the entire expense of the total repairs.

Murphy made the repairs and presented his bill for them; the plaintiff returned, and insisted that he should have his boat from the defendant by simply paying, either to the defendant or to Murphy, the $100 Avhich is called in the case the average.”

We think that the evidence fairly Avarranted the court in submitting to the jury the question whether the plaintiff had not tendered the $100 to the defendant and properly demanded the return of the boat. There is some conflict in the evidence as to whether the defendant took the position of refusing to surrender the boat at all events; or whether he took the position that Mr. Murphy had the boat in his charge, had a lien upon the boat for the extra work (the defendant having paid for all the necessary Avorlc to repair the damages under the contract except the $100 which the plaintiff was to pay), and that, therefore, the plaintiff must settle with Murphy, as the defendant had no control over the boat.

We think the fair preponderance of the evidence is in favor of the last position. The defendant, however, refused to accept the §100, claiming that the plaintiff should pay it to Murphy; that, under the custom governing such matters, it was the duty of the boat owner to pay the average.” to the person who repaired the damages, the defendant to pay the balance. Whereupon,- the plaintiff presented the §100 to Murphy and demanded the boat, but did not tender him any pay for the extra work. Murphy insisted upon his lien for the extra repairs to the boat and refused to surrender it. Whereupon, the plaintiff brought this action, and the court, upon the trial, charged the jury, in effect, that, as Murphy was not a party to the action, the question at issue was simply between the plaintiff and the defendant; and that, if they found that the defendant had refused to surrender the boat -upon proper demand made, and a tender to it of the §100, the plaintiff was entitled to recover the value of the boat. This was excepted to by the defendant, and upon this excejffion is based the chief allegation of error on the part of the defendant, and the only one we deem it necessary to consider. The defendant also raised the point on a motion to direct a verdict.

We are of opinion that, under the authority given by the power of attorney, supplemented by the verbal statement to Homer to take care of the boat and do the best that he could, Homer had the authority from the plaintiff to make the arrangement with Murphy to do the extra work necessary to repair the rotten timbers; and that Murphy, having done that work at the plaintiff’s request through liis. agent, had a lien upon the boat for such repairs, and that Murphy stood upon the independent contract made with the plaintiff which gave him the right to withhold the possession of the boat, as against the plaintiff, until his lien was satisfied. That the defendant having paid for the portion of the repairs which it was bound to pay under the policy, there was nothing left for it to do except te remit the plaintiff to get his boat upon a settlement with Murphy. The plaintiff having by the independent contract with Murphy put him in a position to retain the boat until his charges for the extra work was paid, placed it out of the power of the defendant to deliver the boat until this was done; and the plaintiff should not be permitted now to say that lie can recover the value of this boat, as against the defendant, under these circumstances.

For this error of the trial court the judgment must be reversed, and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed, and a new trial ordered, with costs to the plaintiff to abide the event.  