Haney v. Schooner Rosabelle , 17 Wis. 392 ( 1863 )

By the Court,

Cole, J.

It appears to us that the complaint is defective for not averring that the debt sued for was contracted by tbe master, owner, agent or consignee of tbe vessel. The statute provides that tbe vessel shall be liable “ for all debts'contracted by tbe master, owner, agent or consignee thereof, on account of supplies furnished for tbe use of such boat or vessel, or on account of work done or services rendered on board of such boat or vessel, or on account of labor done or materials furnished by mechanics, tradesmen or others, in and for building, repairing, fitting out, furnishing or equip-ing such boat or vessel.” Subd. 1, sec. 1, chap. 151, Laws of 1859. It is averred that the iron and materials were sold and delivered to Boole and at his request; that they were used in building, fitting out, furnishing and equipping the Schooner Hosabelle; and that the debt accrued to the plaintiffs on account of said Boole; but there is no allegation that Boole sustained the relation of either master, owner, agent or consignee to the vessel. According to our interpretation of the statute, the debt must have been contracted by some person holding some such character or relation to the vessel, to render it liable. It is claimed, however, that the words “ all debts contracted by the master,” &c., which are used in the first clause of this subdivision of the section, relate exclusively to and qualify that clause, and have no application to the subsequent clauses, where the work is done on board the vessel, or where the work is done or materials furnished for building or repairing it. In these cases, it is said, the statute intended to give the lien to the party doing the work or furnishing the materials, regardless of the fact whether the services were rendered or materials furnished at the request of the master, owner, agent or consignee, or not. But we think the more natural and obvious construction is, to hold that those words relate to and qualify the subsequent clauses as well as the first. By every construction, it is clear that some words are to be supplied in those clauses. The words “ debts contracted ” are to be understood, according to the view which the counsel for the respondent takes of the section. But according to our understanding, the antecedent clause, “ all debts contracted by tbe master, owner ” &c., is to be supplied in each clause of tbe subdivision.

It is said that tbe language of this statute is almost identical with tbe statute relative to mechanics’ liens, and that in both cases tbe lien arises from the mere fact that materials have been furnished and used, and from this fact alone. But in tbe case of tbe erection or repair of a dwelling bouse or other building, tbe lien is given only where tbe services are rendered or materials furnished at tbe request of tbe owner or contractor. And even then tbe person employed by tbe contract- or to do work or furnish materials must give tbe owner notice of bis claim, and tbe lien cannot exceed tbe amount which the owner owes or may become indebted to tbe contractor. But in case of building or repairing a boafydf the construction contended for be correct, tbe services may be rendered or materials furnished to a sub-contractor in tbe third or fourth degree, and tbe law requires no notice of tbe claim to be given to the owner. And if tbe mere fact that tbe work bad been done or materials used about the vessel gives tbe right to a lien, bow would tbe owner ever know whether bis property was free from incumbrances or not ? He might pay bis contractor in full for building tbe vessel, yet some person of whose claim be bad never beard, might institute bis suit to enforce a lien at any time witbin a year. Tbe consequence would be that no person would be safe in contracting for building or repairing a vessel and paying for tbe work within a year. If be did, some secret claims might arise witbin that time, which be would be compelled to discharge or lose bis property. In view of these results, we think it manifest tbe legislature did not intend to give tbe lien to any one who might render services or furnish materials regardless of tbe circumstance whether they were rendered or furnished at tbe request of tbe master, owner, agent or consignee, or not.

And this construction derives additional force from tbe language used in the third section, wbicb requires a party instituting a suit against a vessel, to state in the complaint the particulars of his demand, and “ on whose account the same accrued.” This was obviously intended to show by the complaint itself all the particulars of the demand, and that it was contracted by the master, owner, agent or consignee, who alone can create the cause of action which shall constitute a lien.

It results from these views that the order of the circuit court, overruling the demurrer to the complaint, must be reversed, and the cause remanded for further proceedings.