Schooner Muskegan v. Moss.

that said windlass was worth the amount he had charged in his bill of particulars, to wit, the sum of twenty-two 25 dollars; that he made said agreement on the credit of said vessel.

On cross-examination, he testified "that said windlass had not, to his knowledge, ever been received or taken away by said Allen, the vessel, or anybody else; that the last he knew of it, it was still at the shop. It was there at the commencement of this suit; and had never, to his knowledge, been put on board of said vessel, or removed from the shop."

The plaintiff below also proved on the trial that the schooner was a water-craft navigating the waters within and bordering upon this state, and that said Allen was the master at the time he agreed with said plaintiff for the windlass. The plaintiff introduced no further proof, and thereupon rested his case. And the defendant below, by counsel, moved the court to direct a nonsuit in the case; which motion, on hearing, the court overruled.

On the part of the defense, the testimony of said Allen, the *master of the vessel, and others, was offered, tending to show [379 a refusal to purchase said windlass, for the reason that it was not such a windlass as ordered, nor such as would answer the purpose; and that only a very trifling expense was incurred by the plaintiff in fitting up the windlass.

The counsel for the schooner thereupon requested the court to charge the jury: 1. That if they should find the windlass was not delivered, but was refused to be received by the master of the vessel, said schooner would not be liable in this action; 2. That the plaintiff could not recover against said defendant for said windlass which had previously been made for another vessel; and for only the value of such parts of it as were added in pursuance of the direction of, or the understanding with, said Allen.

But the court refused to charge the jury in either respect as requested; but charged them that if they should find that said windlass was fitted up by the plaintiff, in all respects according to , the directions of the master of the defendant, and in accordance with the agreement made with him, and was ready to be delivered when called for, it was immaterial whether the defendant or its master or owners had received it or not, or had refused to receive it; and if they should find the plaintiff had done all that he was requested to do under the agreement, he could recover against the vessel; and, 2. That his recovery could not be limited to the value

Schooner Muskegan v. Moss.

of the materials and labor bestowed and put upon the windlass after the making of the contract; that if the windlass were already made, and Allen, as master of the defendant, agreed to buy it, and the plaintiff in pursuance of the agreement had it ready to be delivered, the vessel was liable, notwithstanding its refusal subsequently to accept it.

To all which, counsel for the schooner excepted.

The verdict being against the schooner, a motion was made on its behalf for a new trial. The motion was overruled, and judgment

entered on the verdict.

To reverse this judgment, a petition in error was filed on behalf of the schooner in the district court, and reserved for decision here. 380] *It is claimed that the common pleas erred:

1. In refusing to order a nonsuit.

2. In refusing to instruct the jury as requested, and in the instructions given.

3. In overruling the motion for a new trial, and entering judgment on the verdict.

E. B. Sadler, for plaintiff in error, insisted that there was but an executory contract at best; that the vessel could not be made liable until the windlass was delivered and furnished to the vessel. Canalboat Montgomery v. Kent et al., 20 Ohio, 54; 3 Ohio St. 325.

Homer Goodwin, for defendant in error, insisted that the contract had been fully executed so far as Moss was concerned; that under the statute, a water-craft "is liable for debts;" that when Moss got the work done, there was a "debt contracted on account of the boat by the master." Or, that it may be considered that Moss sold this windlass as "materials for repairing," or that he performed "work and labor" in manufacturing and fitting up the windlass. Steamboat Monarch v. Finley, 10 Ohio, 387; Canal-boat Huron v. Simmons, 11 Ib. 458; Lewis v. Schooner Cleveland, 12 Ib. 344; Steamboat Waverly v. Clements, 14 Ib. 37; Canal-bout Etna v. Treat, 15 Ib. 589; Webster v. Brig Andes, 18 Ib. 187; Thompson v. Steamboat Morton, 2 Ohio St. 31. It is not necessary that the materials should be placed on board.

SUTLIFF, J. This case depends upon the legal construction of the first section of the statute under which the action was instituted.

Schooner Muskegan v. Moss.

That section provides: "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, or due for wharfage; and also for any damages arising out of any [381 contract for the transportation of goods or persons, or for injuries done to persons or property by such craft; or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who may be a passenger or hand on such steamboat or other water-craft at the time of the infliction of such damage or injury."

It thus appears, from the language of the statute, that the watercraft is made liable for: 1. Debts contracted on account thereof, for materials, supplies, or labor in building, repairing, furnishing, or equipping the same, or due for wharfage. 2. For damages arising out of any contract for transportation of goods or persons, or for injuries done to persons or property by such craft; and, 3. For any injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them to any one at the time a passenger on the craft.

The claim under consideration, as stated by the plaintiff below, was for the non-performance of a parol contract entered into by Ebenezer G. Allen, the master of the schooner, for the purchase of a certain windlass, as furniture or equipment for the vessel, from the plaintiff. It is not stated that the windlass was delivered, or even that it was adapted or fit for the use of the vessel, so that it could be used by the craft as an equipment. The plaintiff says that he shewed the master a windlass that he had on hand, and the master promised if he would repair it, that he, the master, would buy it of him for said vessel; and that he, the plaintiff, agreed to do so, and did repair the windlass according to the master's instructions, as he understood them, and had it ready at his shop to be delivered to said Allen, or to said vessel whenever it should be called for; that the windlass still remains at his shop, and is worth $22.26, the amount charged to the schooner for the same.

The plaintiff does not prefer a claim for work done for the schooner. The claim preferred is in no sense, as stated, a debt, in the common acceptation of that term. Indeed, an action of debt could not at common law be maintained upon the facts consti

Schooner Muskegan v. Moss.

tuting the cause of action against Allen, if the credit had been 382] *given to him. The plaintiff still retains the property; and even if there were the necessary averments in the petition, that the windlass was ready for delivery according to the terms of the contract, and the defendant Allen notified thereof, the plaintiff's right of action would only be for damages for the non-performance of the contract by said Allen.

It is obvious, from reading the statute under consideration, that its object was only to give a right of action against the water-craft, in the particular cases mentioned therein.

It is only where the craft has been in receipt of the consideration out of which the indebtedness arises, as for work done upon or for the craft, or materials, provisions, or wharfage furnished to and received by the craft or its operatives in operating the same, that the action of debt arises against the craft by force of the statute. It is true the statute also provides that the water-craft may be sued by name for the recovery of damages in certain cases; but this case is not one included by the statute. The only cases mentioned in the statute for the recovery of damages against the watercraft by name, except for the malfeasance of the craft, or its officers, agents, and operatives, are for damages arising from the nonfeasance or misfeasance of duties actually assumed and undertaken by the water-craft, such as duties in respect of freight or passengers received to be carried. Any damages arising from the nonfeasance or misfeasance of such duties so assumed and undertaken, as well as damages arising from the malfeasance of the water-craft, or some of the officers or hands thereof in their respective relations, may, by the provisions of the statute, be recovered in an action against the craft by name.

In the case of Canal-boat Montgomery v. Kent et al., 20 Ohio, 54, it was held that an executory contract made with the master of a water-craft to carry flour, and a refusal on his part to carry the same, is not such a contract that a suit can be maintained against the water-craft by name, for a refusal on the part of the master to convey. An application of the same doctrine would exonerate the water-craft in this action from liability, even if the contract had been well stated in the petition.

383] But it is sufficient in this case to say that the cause of action stated in the petition is not included in the causes of action enumerated in the statute for which an action can be brought against the

Steamboat Northern Indiana v. Milliken.

water-craft by name. The only right of action, as stated, is one against the master or his principal, for the non-performance of the contract, and not against the water-craft.

The judgment of the court of common pleas must therefore be reversed.

BARTLEY, C. J., and SWAN, BRINKERHOFF, and SCOTT, JJ., concurred.

STEAMBOAT NORTHERN INDIANA v. JAMES MILLIKEN.

The act of May 3, 1852, to provide for the organization of cities and incorporated villages," conferring on mayors of cities of the second class "all the jurisdiction and powers of a justice of the peace in all matters civil or criminal," provided the same was passed by a vote of two-thirds of all the members elected to each house of the general assembly, is not in contra vention of the constitution of the state.

In the absence of all showing in the record to the contrary, said act will, on error, be presumed to have been passed by such vote.

IN error to the court of common pleas of Lucas county. Reserved in the district court.

On the 26th day of September, 1853, James Milliken in stituted a proceeding before the mayor of the city of Toledo, against the steamboat Northern Indiana, by name, for the collection of a claim of less than one hundred dollars, against the boat, under the act of February 26, 1840, "to provide for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name." Swan's Rev. Stat. 185.

The trial before the mayor resulted in a judgment for Milliken. Thereupon an appeal was taken on behalf of the boat, to the court *of common pleas of Lucas county, and the trial there re- [384 sulted in a judgment against the boat.

The case was then taken, on error, to the district court of the county, and was by that court reserved for decision here.

The only question raised on error, relates to the jurisdiction of the mayor.

The plaintiff in error insists that the mayor had no jurisdiction