
    Canal Boat Etna vs. William Treat.
    Under the act of February 26,1810, providing for proceedings against Steamboats and ' other water craft, by name, where a person has engaged to build and deliver a Boat at a future day, at a specific price, and has delivered the Boat in pursuance of such agreement, he cannot afterwards 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 Writ of Error, directed tq the Supreme Court for the County of Summit, returnable in Bank. .
    The original action was assumpsit, under the act authorizing proceedings against water craft, by name. The declaration contains the common counts, to which the defendant plead the general issue. The cause came on for trial at the September term, 1846, of the Supreme Court for Summit county — was submitted to a jury, who found a verdict for the plaintiff of $510, upon which the Court rendered judgment.
    In Bank.
    Dec. Term, 1846.
    During the progress of the trial the following bill of exceptions was taken:
    “ Be it remembered that, at the term aforesaid, this cause c came on for trial to the jury, upon the pleadings on file. It £ appeared in evidence that, in the fall of the year 1840, Stan- £ dart, Griffith & Co., commission merchants of Cleveland, Ohio, £ contracted with the plaintiff, William Treat, who was a boat ‘ builder at Euclid, in Cuyahoga county, Ohio, for two canal £ boats, one to be called the Etna, and the other the Hope, to £ be delivered to them (the said Standart, Griffith & Co.) at £ Cleveland, at and for the price of ten hundred and seventy- ‘ five dollars each. Under said contract the said boat, Etna, £ was delivered on the 24th day. of April, 1841, and the boat, £ Hope, on the 4th day of May, 1841. It further appeared £ from the admissions of the plaintiff, as proved by the oath of £ one witness, that the contract was, that Standart, Griffith & £ Co. should furnish whatever materials the plaintiff should £ want from their hardware store, and pay him $500, on the £ delivery of the boats. The balance was to be paid by Griffith, £ Standart & Co., as the boats earned it, and that the plaintiff £ did not expect the whole of his pay that year; that they paid £ him, however, only $25 on the delivery of the boat, Etna, £ and $75 on the delivery of the boat, Hope, and that there £ was still due, on both boats, more than $800 ; that Standart, £ Griffith & Co. did furnish the materials out of the hardware £ store, as per agreement; that soon after the delivery of the £ boat, Etna, as aforesaid, Standart, Griffith &• Co. sold and £ transferred her to the firm of Standart, Chamberlin & Co., £ who were millers at Akron, Ohio, and received their pay for £ the same, on the 31st of July, 1841, at $1075, by charging £ that sum in account — Chamberlin being informed that the £ boat was not paid for. Standart and Griffith, of Cleveland, £ were also partners in the Akron firm, of Standart, Chamberlin £ & Co., composed of Standart, Griffith, P. Chamberlin and S. 4 A. Wheeler. It further appeared that Standart, Griffith & 4 Co.,'from the delivery of the boats,'as aforesaid, continued to ,e make payments to the, plaintiff until-March 6, 1843, when 4 said payments amounted to !$ 1391.25. 'About this time the 4 firm of Standart, Griffith & Co. failed, and, on the 8th day of 4 June, 1843, the plaintiff instituted the present suit. It further 4 appeared that, on the 6th day of June, 1842, the firm of 4 Standart, Chamberlin & Co.-, being then indebted to one J. 4 D. Cummins, in' a large amount, for .cash advanced for the 4 purchase of wheat, executed a mortgage of said boat, Etna, 4 then in their possession, to secure to said J.- D. Cummins the 4 paypient of $1500. Afterwards, and on the 24th day of 4 May, i’843, the said J. D. Cummins commenced his suit at 4 law, in the Court of Common Pleas of Summit county, against 4 said Standart, Chamberlin & Co., upon said claim — obtained 4 judgment at the Septembér term, A. D. 1843, on which he 4 caused execution to be issued and levied upon said boat, Etna, 4 and purchased the same at sheriff’s sale, on the 20th day of -4 April, 1844'. Upon this testimony, it was claimed by counsel 4 for defendant that the plaintiff, was not entitled to recover, as 4 no liability attached, to the boat, Etna, under the act entitled 4 4 an act providing for tÜé collection of claims against steam™ 4 boats and other water craft, and authorizing proceedings 4 against the same by name,’ and requested the Court to charge 4 the jury accordingly. But the Court instructed the jury that, 4 if they found, from the evidence, that the plaintiff built the 4 boat, by contract, for Standart, Griffith & Co., at a specific 4 price, and delivered her under that contract, a liability attach-4 ed to the boat, in favor of the plaintiff, under the act aforesaid, 4 and the plaintiff was entitled to recover in this suit.”
    To this opinion and instruction of the Court, the counsel for defendant excepted; and now assigns for error the ruling of the Court, as stated in the bill of exceptions.
    
      
      R. P. Spalding, for Plaintiff-in Error, insisted —
    That the case did not come within the provisions of the statute ; that Treat himself was the owner of the boat, till delivered, and during the process of' building, and the labor performed by him was, in fact, done for himself; and that he no more had a lien' or claim upon her than exists in all cases'of the sale of a boat. He referred to 6 Wend. Rep. 510.
    
      S. J. Andrews and R. Hitchcock, for Defendant, contended — ^
    That this was one of the very cases intended to be reached' by the statute, which was founded in principles of public policy, adapted to the wants and progress of a commercial state, and was designed to encourage ship-building, by furnishing for the builder ample security for his debt, and an efficient remedy for its collection, when due; thereby enabling him to give, and his employer to obtain, a more liberal credit than would otherwise have been admissible; and that the word “ owner ” should be construed to mean, as between the contracting parties, him who, on the completion of the vessel, was to be the owner. They denied that the case from Wendell was analagous to the case at bar.
   Birchard, J.

To understand the proper application of the act of February 26, 1840, under which this action arises, it is necessary to take it as an entire thing, to construe .its several provisions together, and, also, to have regard to the reason and objects of the law. In itself, it is a beneficial statute, deserving a liberal construction for the purpose of advancing those objects. But while considerations of this nature are borne in mind, it is equally the duty of the Court to so far restrain their desire to promote its beneficial objects as to stop short of a construction so free as to lead to manifest absurdities. The claim «of the defendant in error was for a debt due for “ materials, supplies and labor,” expended in building the canal boat Etna. The statute-' makes the boat liable for such debts, when contracted by the owner on account of the boat. These are the words:

“That steamboats and other water crafts navigating the 4 waters within or bordering upon this State, shall be liable ‘ for debts contracted on account thereof, by the master, owner, 4 steward, consignee or other agent, for materials, supplies or la-4 bor in the building, .repairing, furnishing or equipping the ‘ same,” &c.

Upon the trial the Court instructed the jury, that “if they 4 found, from the evidence, that the plaintiff (Treat,) built the 4 boat by contract for Standart, Griffith & Co. at a specific 4 price and delivered her under that contract, a liability attach-4 ed to the boat in favor of said plaintiff, under the act of Feb-4 ruary 26, 1840, entitled (an act providing for the collection ‘ of claims against steamboats, and other water crafts, and au4 thorizing proceedings against the same by name,5 and the 4 plaintiff was entitled to recover in this suit.”

To test the accuracy of this charge, let us consider who was the owner of the Etna up to the time of. the delivery. Treat had contracted to build her and deliver her at a particular time. Before the delivery she was, undoubtedly, his property. He was the owner and had the absolute control of her. He might have broken her up at any moment, and a sale and transfer by . him to any stranger would have vested in that stranger a valid legal title. If transferred without notice of the contract between him and Standart, Griffith & Co., the purchasers would have had a perfect title to the boat, one that nothing could have affected save the debts which Treat himself .had contracted as owner, for supplies, &c., furnished in building the Etna. For those debts the boat was liable, and a transfer by Treat to any person, or under any cirumstances, without notice of those debts or the assent expressly or tacitly given by them, would not have prevented Standart, Griffith & Co., or the hands that labored upon the boat, in assisting to build her, from attaching and selling her under the statute, to satisfy their claims. The object of the act was to provide a remedy for those vy’ho otherwise might be defrauded, hindered or delayed in collecting their just claims, and to save them the inconvenience of " seeking out the owners and subjecting them to the payment of the debts contracted by their authority.' Looking to this'object and to the facts of the case, and all'difficulty about the law or its application vanishes'. Treat'could not recover. His. claim was not -for á debt contracted for labor, supplies or materials in the building of the. boat.' A.debt cannot exist without a debtor and a creditor. It is something whiclj grows out of a contract, and to every contract there must be two parties; the contractor who is ■ to be bound by it and- the' contractee to whom he is bound. . Treat could not contract with himself .to fnrnish himself materials for his own boat, any more-than he could sue himself for breaking such a contract'. Both ideas are absurd; one not more so than the other. His claim',, then, is simply a claim for the price due upon the sale arid delivery of the boat, and does not come within the letter or spirit of .the statute. Here I should-stop, but.for-the fact that different opinions, at times, have been held by other members of this Court. As that difference fnay still exist, and tend to throw doubts upon the law, a further examination, on my part, may subserve the public good. . .

The ' statute presupposes that the person having a demand for work, labor and materials against a boat, has a right of action at the same time, and co.-extensive therewith, against some third party, as owner. It provides that such party, on the seizure of the boat, by giving bond, may release the boat, and, that after trial and sale of the boat, if its proceeds are insufficient to satisfy the judgment, -the balance shall remain, to be collected on execution as on other judgments.” Swan’s Stat. 210, secs. 5 and 6.

In this case let us 'suppose, that, after the completion • of the boat Etna, Treat had held her as his own from the fall of the year until the opening of navigation in the ensuing May, and then made the delivery to Staudart, Griffith & Co. Where would .have been the liability of the boat for his labor and materials in the mean time ? It attached, if 'at all, the moment the labor was performed and the materials were furnished. If it attached then, the delivery or non-delivery could have had no effect upon it. Treat was then the owner, and he contracted the liability, if it existed, with himself, as owner. He could not contract with himself. The boat could not contract with him; it had no faculty that would enable it to do so. Not intimating that the notion I am combating is an absurdity too palpable to find advocates, let us suppose that, before the delivery of the boat, in the case I have supposed, Treat had attached it for the labor by him performed in building it, and proceeded, in the forms prescribed by the statute, to a condemnation and sale, and that the Etna had passed into the hands of a purchaser from the sheriff for $10, leaving the residue of the judgment unsatisfied. Against whom would the balance of that judgment have remained to be collected on execution ?” Not against Standart, Griffith & Co. They were not to be liable for ariy thing until the boat was delivered to them; and in the supposed case there was no delivery. The plain meaning of the statute is, that the balance shall be a good judgment against the one who was, in fact, the debtor at the making of the contract for the labor and materials, that is, Wm. Treat, the owner of the boat. So, that, upon the theory of Mr. Treat’s counsel, he would be both plaintiff in execution arid defendant in execution to the same identical execution. A construction of the statute that works such results will derive but slight support from the members of the profession, and, I should hope, but little countenance any where.

The charge of the Court was, therefore, erroneous, and the judgment must be reversed: The claim was not for expenses incurred in building; it was for the balance of the contract price, and does not differ, in substance, from any balance that might be due from any purchaser to the vendor on an ordinary sale and delivery of a boat. Such vendor can always secure himself before the delivery of the boat.

Hitchcock, J., having been of counsel with Treat, took no part in this decision.

Reíd, J.

dissenting. I dissent in this case. The construction given to the statute by two Judges of the Court, in effect, destroys the main object of the statute. The largest interest intended to be secured under the statute, is that of builders. But under the construction now given, a builder can never hold the boat liable; because it is said the boat is his up to the delivery, and the statute furnishes no remedy against himself. It is said, the boat is the property of the builder, if built under a contract; and hence the builder can have no claim upon ^the boat under this act. Now, the result is, that as against the person for whom the boat is built, no remedy for building, for materials furnished, or for labor, exists. If the right exists at all, it is against the builder. A builder can never, in this view, have the remedy given by this act. To give him this remedy, the person for whom the boat is built must be treated in fact as the builder; and the mechanic or builder must be treated as a mere laborer, and as such he may claim the remedy of the statute.

Now, undér this view, all the builders of steamboats and canal boats, upon the rivers, lakes, and canals in our State, have no claim upon the boat under this act. Such never was the intention of the Legislature. The Legislature designed that the moment a claim sprung up against the person for whom the boat was built, materials furnished, or labor performed, the boat itself might be pursued under the act. The construction now given not only violates the plain object and intent of the act, but its very words; for the act makes the boat liable to the builder, while under the- construction given by two of the Judges, a builder never can have any remedy under it. It is surprising that any one ever should have supposed that small claims, arising on account of the boat, are carefully secured by this act, when the more meritorious and larger claims, for tually building the boat, are not embraced.

Such a construction does violence to the main object and intent of the act, and also to its express letter.  