Crawford and others vs. Collins and others

Crawford and others vs. Collins and others. The parties to a copartnership may give it any name they please, and all contracts, obligations or notes made with, or given to such firm, may be prosecuted in the individual names of its members. The act of April 24, 1862, “ to provide for the collection of demands against ships and vessels,” applies to canal boats. By the third section of that act, which requires the specification of lien to be filed in the office of the clerk of “ the county in which the debt shall have been contracted,” the legislature meant the port where the contract was performed, or completed and became a debt; not the locality where the bargain was made. Accordingly, where a contract for towing a boat from Troy to New York was made in Troy, the sum to be paid not becoming due until the delivery of the boat at New York; Seld that the agreement did not become a debt until performance, which took place in New York; and hence the debt might be said, within the spirit and intent of the statute, to have been contracted in the latter city, and that the specification was therefore properly filed in the New York clerk’s office. A general agent of a towing company has authority to sign and verify the specification mentioned in the act, in behalf of his principals, it being an act in the business of his agency; and such signing and verification is the act of- his principals. A Justice of the Supreme Court has authority to issue a warrant under the act of 1862, for the seizure of a boat, equally with the officers authorized by law .to perform the duties of a Justice of such cpurt at chambers. Objecting to a surety in a bond for insufficiency, even though the objection is sustained, and another surety added, will not release the former, so long as his name is on the bond when it is finally accepted. . ^ THIS was an action tried at the circuit, before the court and jury, wherein a verdict was rendered for the plaintiffs subject to the opinion of the court at general term. The parties now move, the plaintiffs for judgment and the defendants for a dismissal of the complaint. The action was upon- a bond given by the defendants to the “ Union Towing Company,” on a proceeding under chap. 482 of the Laws of 1852, page 956, entitled “An act to provide for the collection of debts against ships and vessels.” The plaintiffs compose a firnk, or co-partnership, known as the “Union Towing Company,” and keep offices at Hew York and Oswego, whose business is towing boats on tire canal by horse power, and on the Hudson river by steam. The defendant, Collins, owned the canal boat Sidney L. Cross,- and the plaintiffs, at his request, towed said canal boat from Troy to New York for the sum of $60, arriving in New York on the 19th day of November, 1863. Said towing has never been paid for. On the third day of December, 1863, the plaintiffs filed in the clerk’s office of the city of New York, specifications of lien on said. boat. The said canal boat remained in New York until the 29th day of November, when it went to Bondout and returned in ten days. It then remained at New York twenty days. It then went to Elizabethport, loaded, and came back and went to Elizabethport and back again, and then remained in New York all winter. It left New York again about the first of May, 1864, and has not since returned to that city. On the 19th of October, 1864, the plaintiffs, by their agent, applied to a Justice of the Supreme Court,' who issued a warrant under said act, and the boat, then at Schenectady, was seized by the sheriff under said warrant. The petitioner set forth the name of the co-partnership, who composed it, and the proceedings were had in the name of the “Union Towing Company.” After the seizure of said boat, the bond on which this action is brought was executed and delivered and the boat released. This bond was executed by all the defendants. It was to the Union Towing Company, its successors or assigns, specified the claim for which the boat had been seized, and was conditioned to pay, or cause to be paid, unto said Union Towing Company, the amount of all claims which should be established to be due to them, and to have been a subsisting lien upon said canal boat, in pursuance of the provisions of chap. 482, Laws of 1862. The jury, rendered a verdict for the plaintiffs for $101.06. J. L. Hill, for plaintiffs. Mitchell & Beattie, for defendants. [MAJORITY — By the Court, James, J.] By the Court, James, J. This action was properly brought in the individual names of the plaintiffs; they were the persons who composed the firm known as the “Union Towing Company/’ the real owners of the debt and the legal holders of the bond. The parties to a copartnership may give it just such name as they please, and all contracts, obligations, or notes, made with or given to such firm, may be prosecuted in the individual names of its members. It is different with corporations; but the Union Towing Company was not a corporation. Chapter 482, of the Laws of 1862, has application to canal boats. The first section is made applicable to sea going or ocean bound vessels, or to any other vessel; and its fifth subdivision includes, among other items for which a vessel may be seized, that of towing. Bouvier says: “ In maritime law, vessel is a ship, brig, sloop, or any. other craft used in navigation.” When a legislature in its enactments distinguishes between sea going and other vessels, the latter clause should be received in its largest sense, and be held to include all craft used in navigating any of the waters or canals of the state. The case of Many v. Noyes, (5 Hill, 34,) was decided under the Revised Statutes, (2 R. S. 493,) which only contained the words “ships or vessels,” and did not name “ towing” as one of the debts which might be a lien. The act of 1862 was a substitute for the Bevised Statutes, repealing the latter, and its enlarged terms show a design to extend its benefits beyond the narrow construction given, by the courts, to the repealed statute. The third section of the statute requires the specification of lien to be filed in the office of the clerk of the county in which the debt shall have been contracted. This claim was for towing the canal boat Sidney L. Gross from Troy to Hew York. The offer to tow the boat to Hew York was made at Troy, and there accepted; but no time of payment was specified, no payment made, or negotiable obligation given, and hence the money did not become due until the delivery of the boat at Hew York. The place of bargain was Troy, but the agreement did not become a debt until performance ; it was completed in Hew York; and hence, in a legal sense, the debt may properly be said, within the spirit and intent of said statute, to have been contracted in Hew York. A careful consideration of the statute will demonstrate this. A lien is given by said act against vessels for work done, or materials furnished; for provisions or stores; for wharfage or keeping of vessels in port; for loading or unloading; and for towing. Some of these are matters which can only be performed or rendered at the port where the vessel lies, while others may be contracted for elsewhere, to be performed at such port, to be paid for when performed. If a vessel lay in the port of Albany, a contract for loading or unloading might be made in Troy, but could only be performed in Albany. While executory, no debt is created; but when performed, a debt would exist. So if provisions were contracted for in Schenectady, to be delivered on board in Albany, or goods on a wharf at Albany, were contracted for in Hew York to be paid for at Albany; or a contract made by a steamer in the Harrows off Richmond county to tow a vessel into Hew York, to be paid for on reaching port. In each case the executory contract would be in one county, to be completed in another; until completed no debt would exist;. and can there be a doubt that the legislature intended the specification of lien should be filed in the latter county. Ho purpose would be subserved by a filing in Rensselaer in the one case, or in Schenectady, Hew York or Richmond in the others. The intention of the legislature was to furnish a record where creditors and purchasers might seek information; and in the counties where were the ports at which the vessel had touched. What the legislature meant by the term “the county in which such debt shall have been contracted,” was the port where a contract was performed, or completed, and became a debt; not the locality where a bargain was made. In this view, the specification was properly filed in the Hew York clerk’s office. The statute requires that to constitute a lien, a specification of the same shall be sworn to by the person having the same, Ms legal representatives, agents or assigns. The specifications in this case stated that. the Union Towing Company composed, &c. had a lien upon the canal boat Sidney L. Cross for towing, &c. and was signed and sworn to by C. T. Benjamin, agent. The proof of the agency of Benjamin was sufficient. As general agent he had the authority to sign and verify such specification, it being an act in the business of his agency, and such sigmng and verification was the act of his principal. For enforcing the lien given by the act, it provides that any person having a lien may apply for a warrant to any officer “authorized to perform the duties of a Justice of the Supreme Court at chambers.” In tMs case application was made to a Justice of the Supreme Court and the warrant granted by him. It is insisted that no authority to issue such warrant is vested in a Justice of the Supreme Court by the act, but only in such officers as are authorized by law to do what a Justice can do at chambers. In this we differ from the learned counsel of the defendants, and hold that the authority exists with the Justices of this court equally with those authorized by law to. perform- their duties at chambers. The bond sued upon seems to have been executed by all the defendants. Upon its face, all are liable for such an amount as was established as due the plaintiffs. It was insisted that because Vincent, one of the sureties thereon, was objected to as not being a freeholder, and held not competent for that reason, and another surety, Day, afterwards added, the bond again presented and then approved, Vincent was not liable thereon. But objecting to Vincent for insufficiency, even though the objection was sustained, and another surety added, would not release Vincent, so long as his name was on the bond when finally accepted and the property released. On the trial the plaintiffs' claim for towing was proved; the claim had been made a lien upon the boat, and was in force when the boat was seized; it was released upon the delivery of the bond in suit; its execution by the defendants was duly proved; the jury have assessed that claim at $101.06; and for that sum judgment should he directed for the plaintiffs- with costs. [Schenectady General Term, January 2, 1866. Bockes, James and Rosekrans, Justices.]