Waldron v. Henderson , 2 Rec. Co. Ct. 901 ( 1753 )

Jsaac Waldron plaint. agt William Henderson of Dover Deft in an action of the case for that the said Henderson hath not recalked graved fitted & compleated a Ship about One hundred twenty and Seven tons to the Sea with all Carpenters worke whatsoever wth all possible Speed according to his obligation bearing date the. 7th of January Ann° Dmn 1677. whereby the sd Waldron or his Emploiers are damnified One hundred and Fifty pounds or thereabouts in Silver, wch shall appeare with all other due damages &c. . . . The Jury . . . found for the Defendt costs of Court grantd thirty Shillings & eight pence: The plaint. Appeald from this Judgemt unto the next Court of Assistants and gave Security for the prosecution thereof to Effect.

[ By bill of sale dated 7 January 1677/78 (S. F. 1734.5), William Henderson sold to Isaac Waldron for account of Samuel Wiggins of London, merchant, three quarter parts of the ship Primrose, 127 tons burthen, for the sum of 307l 10s. On the same date he signed the following obligation:

S. F. 1734.7

Whereas J William Henderson of Dover in New-England Ship-wright have built for Jsaac Waldron of Boston in New-England abovesd Physitian & his order the hull or body of a Ship or Vessell of burden about One hundred and twenty Seven tons now lying in the River of Piscataqua, and am obliged to recalke grave and everyway to fit and compleate the sd Ship to the Sea with all Ship Carpenters worke whatsoever: J the sd Henderson do hereby oblige my Selfe heires Execrs and Admrs that J will with all possible Speed do and finish the sd workes or cause them to be done and finished to the compleate fitting the sd Ship to the Sea as aforesd and in case the sd Ship shalbee hindred or any waies staied through my default for want of any of the sd workes being done unto her, J do hereby promiss and engage to pay and Satisfy the sd Jsaac Waldron his Correspondants Emploiers or Assignes all such just damages as hee or they shall Sustein by reason of the Ships lying for want of the sd worke. Jn Witness whereof J have hereunto put my hand & Seale this Seventh day of January Ann° Dm 1677 @

Wm Henderson a Seale

Signed Sealed & Deliurd in pursence of us.

Nathal: Byfeild

Jsa Addington.

S. F. 1734.6

By this publick Jnstrument of Protest, Bee it known and manifest unto all People that on the Eigth day of February in the yeare of our Lord One thousand Six hundred Seventy Seven Stilo Angliæ. Before me Robert Howard dwelling in Boston sole Notary and Tabellion publick by Authority of the Generali Court of the said Colony admitted and Sworn Appeared Jsaac Waldron of Boston aforesd Physitian and desired me the sd Notary to protest against William Hinderson of Dover in New-England Shipwright, For that whereas hee the sd William Hinderson by Obligation under his hand & Seale bearing date the Seventh day of January One thousand Six hundred Seventy Seven did contract and oblige himselfe his heires Execrs and Admrs unto the sd Jsaac Waldron forthwith or with all possible Speed to recalke grave & every way to fit and compleate, a Ship or Vessell to Sea burthen about One hundred twenty and Seven tons now lying in the River of Piscataqua with all Ship Carpenters whatsoever to bee done unto sd Ship to and for the use of sd Jsaac Waldron his Correspondents Jmployers or Assignes according to the tenour of sd bond shewed to me the sd Notary: Now hee the sd Jsaac Waldron desired me the sd Notary to protest against the sd William Hinderson, For that hee the sd William Hinderson hath not recalked nor graved nor fitted the sd Ship with a Capstan & Windlice & Boate and many other things in fitting the sd Ship to Sea with such Expedition and possible Speed, according as is expressed & manifested in sd recited Obligation as by the same Obligation reference thereunto being had will more fully appeare: therefore J the sd Notary according to the instance and request aforesd in behalfe of the sd Jsaac Waldron the Appearer and parties therein concerned as aforesd J do hereby solemly protest against him the sd William Hinderson Shipwright for all breach of the sd Covenant, Contracts & Agreements by him to bee performed & kept contained in sd recited Obligation according to the true intent and meaning thereof, and thereby for all Losses charges hazards detriments disappointments & damages whatsoever at present Suffered or that hereafter the sd Waldron &c. shall or may Suffer or Sustain to bee all recovered against him the sd William Hinderson Shipwright his goods & Estate in time and place convenient: This was thus done & protested according to the Custom of the sd Mattachusetts Jur[is]diction in the publick Office of me the sd Notary [in] Boston aforesd the sd Eigth day of February 167[7] in pursence of John Morse and Paul Batt Jnhabitants in sd Boston being Witnesses hereunto called [and] requested.

Quod virtute Officij mei attestor

Robert Howard Not: publ. predict.

This protest is Recorded in the 163. & .164. page of the sd Notary Records per purdt Ro: Howard: N: P:

J the abovewritten Notary (besides what is already done in point of protest as is abovesd) do hereby order appoint and depute William Waldron to publish the same to himselfe, if not out of the way or at his house or at the sd Ship or Vessell.

This protest was published and read onboard the Ship within mentioned and also to mr Henderson himselfe, sometime in February last past, J also left a Note at his house J had from mr Howard which was to give him notice of this protest also, per me Will. Waldron

. . . true Coppie . . . Jsa Addington Cler

S. F. 1734.9

The Deposition of Derrick Addams aged about 36 yeares Testifyeth & Saith, That he being Boatswaine of the new ship built at Dover, by William Henderson, in the yeare 1677 This deponent did worke Sundry days on board the sd Ship, being Shipped by mr Jsaac Waldron and that the Said Ship now Called the Primrose, was not afloate but remained on the Sands neere the Towne of Dover, untill Richard Rich & by his meanes, and by our Endeauors, the Sd Ship was Sometime in the monthe of February last past Carryed out into the river, and that vntill that time, the Ship was not afloate or Swimming, and further this deponent Saith not

Joseph Hasy, carpenter, added his testimony in part as follows (S. F. 1734.12):

... that if mr Hinderson had been willing hee might have been daily forwarding the worke ever since the .7th of January abovesd to this day, being yet much Carpenters worke to bee done before Shee is fit for Sea Vizt calking up the portholes, recalking the deck placeing the Capstan as it should bee, a Ladder to Set to the Scuttle to go down between decks and placeing timbers to stow the Boate upon deck and much other worke that the sd Hinderson or Builder ought to have done; which J am yet daily imployed to do being imployed by mr Waldron: And J further testify that on the Seventh day of January last past the Ship abovesaid wanted a Boate, recalking graving capstain windlice top mast top mast yards, tiller transome and much other Carpenters worke that the Builder ought to have done, and that J Joseph Hasey by mr Waldrons order have worked on the sd Ship in making or mending and Setting the Boate sprite, Cheekes for the Chimneys fitting and setting the Mison mast, plaineing and Cleeting the maine yard maine top saile yard, maine topmasts, the drawing and plaining and cleeting the fore yard the fore top saile yard and fore topmast, graveing two sides drawing and plaining the mizon yard mizon topsaile yard cross jack yard, mizon top mast calking between the wales fitting the sprittle yards and top mast, forelocking of bolts, the making the bulkehead in the Lazareta, the pump case the Loading port, the Setting of the pump and much other worke that the sd Henderson ought to have done about which worke J spent thirty five dayes after the rate of three Shillings and Six pence per day in Silver as mr Waldron payes to other Carpenters it comes to Six pounds two Shillings and Sixpence part of which J have receivd of sd Waldron already, and doubt not but shall have the remainder to my Satisfaction after J have finished the Carpenters worke which J am daily about, and which worke mr Hinderson or builder ought to do or cause to bee done; but the said Henderson absented himselfe and would not, and J do really beleive that if mr Waldron had not imployed hands to do the Carpenters worke to sd Ship, Shee might have spent the Ownrs by wages and provisions for Seamen and other Charges more then Shee is worth before mr Henderson would have fitted her with all Carpentrs worke fitting for the Seas

Grt Jsland the .22d April. 1678. Joseph Hasey came and made oath to the truth of the within written Before me

Elias Stileman Commissr

Considerable additional testimony as to Henderson’s neglect is in S. F. 1734.5. The Court of Assistants (Records, i. 119-20) confirmed the former judgment with 53s 8d costs. But Waldron had to sue Henderson twice again, in the July sessions of 1678 and 1679; see below, pp. 924 and 1038.]