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for that purpose, the receipt and note would be taken as one instrument; but it minimizes the force of this clause in the note for the only purpose for which it could be used. Of course, if liens were not given when the coal was furnished, they could not be created by any understanding which first had its origin at the time the note was given; so that the most that can be implied from this clause would be to the effect that thereby the Ogdensburg Transit Company recognized liens as already existing. It comes in, therefore, if for any purpose, as an admission, the importance and weight of which are to be tested by the other circumstances of the case.
One other fact not specifically set out in the opinion of the circuit court, and to which its attention was not directly called, was the precise terms of the contract in the particulars to which we will hereafter refer.
With regard to the coal furnished at Cleveland, the petitioners also rely on section 5880 of the Revised Statutes of Ohio, as follows:
"Any steamboat, or other water-craft navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all 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 of the same, or for insurance, or due for wharfage, and also for damages arising out of any cntract for the transportation of goods or persons, or for injury done to persons or property by such craft, or for any damage or injury done by the captain, mate, or any other officer thereof, of by any person under the order or sanction of either of them, to any person who is a passenger or hand on such steamboat or other water-craft, at the time of the infliction of such damage or injury."
We do not find that this statute was particularly commented on by the learned judge who sat in the circuit court. The counsel have brought it to our attention, and, although it is not clear that it is covered by the assignment of errors, yet it involves too important propositions to be overlooked. What effect shall be given to it will be considered hereafter.
Aside from the questions which may be involved in the application of the Ohio statute, no liens arose unless a mutual understanding that there should be liens can, as said in The Iris, be properly implied from the giving and receiving of the vouchers referred to, supported by the peculiar expression in the note of the Ogdensburg Transit Company which we have cited, so far as that expression can be regarded as an admission affecting the result. Before weighing the effect of these two elements, it is necessary to clear the case of some confusion appearing at some of its stages. The position of the petitioners is not an unmixed one with reference to the distinctions between supplies ordered by a master and those ordered by an owner. It proceeds on the hypothesis that this is the ordinary case where supplies are ordered by a master in a foreign port, so that the favorable rules as to presumptions apply which were stated in The Emily Souder, 17 Wall. 666, 671, 21 L. Ed. 683, and which have often been elsewhere expressed. The propositions of the petitioners in this connection twist the case from
its natural relations to ordinary business transactions, and are properly disposed of in the opinion of the learned judge who sat in the circuit court, wherein he said:
"When the master, in any instance, notified the petitioners of the amount of coal he desired, it was presumably a notification under the contract, and the coal was presumably furnished under the contract. The situation is the same as if the manager of the defendant company had been present when the vessels arrived, and had personally notified the petiti ners that he wished them to furnish under the contract the respective amounts of coal which were supplied."
Looking at all the circumstances of the case fairly, and according to the rules which we must assume govern, in their ordinary transactions, two business concerns like those involved here, and avoiding the distortion of facts for the purpose of creating lien in behali of the petitioners, it is too plain to require any elaboration that this extract from the opinion of the learned circuit judge states precisely the relations of the masters of the various steamers to the transactions in question; but the petitioners seek to meet this by affirming that the contract which we extract is so defective in its terms that it is a mere memorandum. They refer to the fact that it makes no provision for credit, and they claim that it only specifies what amount of coal is to be taken. Therefore they maintain that the contract amounted only to directions to the masters of the steamers with reference to the dealers or yards from whom they were to obtain their fuel. But it is formal in all respects. To be sure, it did not bind the Ogdensburg Transit Company to purchase any specific amount of coal, or, indeed, any coal at all, because it did not bind it to send the steamers named to the ports named. Its terms were clearly obligatory on the Cuddy-Mullen Coal Company to supply what coal might be required; and the fact that the Ogdensburg Transit Company was not bound to send steamers to the ports named did not change the nature of the instrument as obligatory and perfect within the terms of the law as well as from a commercial point of view. In this respect the contract was fully as specific as that under consideration by this court in Church v. Proctor (decided on February 2, 1895) 13 C. C. A. 426, 66 Fed. 240, where Judge Aldrich, speaking in behalf of the court, explained, at page 242, 66 Fed., and page 428, 13 C. C. A., that the contract was complete on its face, in the sense that it was as complete as contracts regulating undertakings of the character concerned could well be made. Maritime liens for repairs and supplies are in the nature of safeguards against the emergencies in which sea-going vessels may be placed at foreign ports, and the danger of such emergencies arising in this case was, at least, guarded against by the contract in the record before us.
Of course, it is not maintained that the mere fact that the contract failed to state whether the coal was to be paid for in strict cash affects its binding force in the eyes of the law; but this, apparently, is relied on as bearing on the proposition that, as personal credit was not stipulated for, it must be presumed that the coal was delivered in agreed reliance on a lien. Looking at the rela
tions of these parties under similar contracts for several years, the question whether the sales were to be for cash is to be determined, not so much by any formal terms as by the prior course of dealings and the usages on the Lakes, and by a knowledge whether the Ogdensburg Transit Company was entitled to credit. So far as concerns the latter element, there are no proofs or suggestions in the record, one way or the other, except the transaction between these parties in the particular to which we will hereaiter refer, and except that this corporation was the owner of a large fleet of steamers, navigating the Lakes, and was actively operating them, without any evidence, direct or indirect, that, when the contract was made, it was under any considerable indebtedness. Therefore the ordinary presumption of fact applies which applies to all persons and corporations owning and actively operating large properties, without any suggestion of not meeting obligations in the ordinary course.
But the record shows plainly that credit was intended. To the petition are attached various schedules, stating the amount of coal and the prices thereof. The claim set out in the petition is for these specific amounts, with interest from December 19, 1898, which day we can take judicial notice was about the close of the season of Lake navigation. It is the same on which the note referred to was given. The note itself was made on six months' time, and included the interest for that period, and none of the schedules attached to the petition, and no allegations of the petition, claim any interest except from December 19th. The several vouchers which have been referred to were receipted in full on December 19th, without any addition of interest. Therefore the record shows that, by the understanding between the parties, the prices were made as of a date which represented the close of the season, and that no interest was to be paid for the intervening period. This demonstrates, not only that the Ogdensburg Transit Company was entitled to credit, but that it actually did receive credit, and that it was agreed that it should have it.
Important facts are found in the very frame of the written contract between the parties. Its caption formally describes it as one between the petitioners and the Ogdensburg Transit Company. It commences with these words, "In consideration of the said Ogdensburg Transit Company hereby agreeing to take," etc.; and to the same effect are the closing words that, under certain circumstances, "the Ogdensburg Transit Company" is to have the benefit of certain reduced prices. It is true that these expressions are in no sense peculiar; but they are appropriate to ordinary contracts between two parties for merchandise, when they rely on each other and on nothing else. Nowhere does the Ogdensburg Transit Company assume to act in behalf of its steamers, or as representing them; but throughout the contract is positively expressed as one between the parties who executed it, and as individual to them and them alone. It contains at all points such features, and none others, as properly belong to a contract between two parties dealing on their own personal credit for a series of transactions.
On the other hand, the vouchers, so much relied on by the petitioners, did not assume, in any particular, to represent correctly the relations of the parties. In any event, the Ogdensburg Transit Company was liable personally for the fuel; yet it is omitted from the vouchers, which name, in each case, the vessel only. Therefore, as the vouchers were not exact in this substantial particular, there would seem to be no presumption that they intended to correctly represent the transactions. It is to be remembered that they were given at the request of the Ogdensburg Transit Company, and are exactly such, and only such, as a careful corporation, operating a line of vessels, would desire in order that it might receive the approval of the masters, and be able to keep the usual accounts with each steamer. In view of the ordinary course of transactions of careful merchants and operators, desiring proper accounts with their various properties, they are as consistent with one theory as with the other.
Some effective observations in this direction will be found in The Patapsco, 13 Wall. 329, 20 L. Ed. 696. That, also, was a case of coal furnished various steamers operated by, the Commercial Steamboat Company. The coal was purchased by the agent of the corporation; but under the circumstances of the case, which, as appears in The Valencia, 165 U. S. 264, 269, 17 Sup. Ct. 323, 41 L. Ed. 710, was regarded as a very close one, it was held that the coal dealer had liens on the various steamers involved. On looking at the corresponding facts of the two cases, the reason why liens should be sustained in The Patapsco and denied here becomes apparent. As we have said, in each case the coal was ordered by the owner, but in The Patapsco there was no contract for a season, nor any other contract of a formal nature. The coal was delivered to each steamer on arrival, after requisition by the engineer on the owner's agent. The agent testified (page 331, 13 Wall., and page 697, 20 L. Ed.) that the owner was not known in the transaction. It appeared that, during the whole time the coal was being furnished, the owner was in an embarrassed condition, and that, almost simultaneously with the supplying of the first lot, all of its steamers were heavily mortgaged. At page 333, 13 Wall., and at page 697, 20 L. Ed., Mr. Justice Davis, in behalf of the court, ob
"There is no reason to suppose that the master had funds or the owners of the line credit." "On the contrary, it is in proof that the company which owned the line of steamships was, at the date of these transactions, hop lessly insolvent, and was borrowing large sums of money on a mortgage of its steamers, away from home, and in the very city where the libelant resided."
Then the opinion follows up these facts, and says that, under the circumstances, it would be a "violent presumption" to suppose that the libelant relied on the credit of the corporation. It remarks, at page 334, 13 Wall., and at page 698, 20 L. Ed.:
"It is very clear that there was no credit to the company at the time of sale, because the coal was sold for cash, at the lowest market price."
In all the particulars which we have named, the case at bar is the reverse of The Patapsco. Under the circumstances, the court
there held, as we have already said, that the coal dealer had liens. on the steamers, although it was met with the fact that the entries on his journal charged the coal to the Commercial Steamboat Company, and in no instance to the steamers. Nevertheless, it says at page 335, 13 Wall., and at page 698, 20 L. Ed.:
"There is nothing besides this journal entry to indicate that the coal was furnished on the personal credit of the company, and, as the other facts in the case are in favor of a charge direct to the steamship, we do not think the legal inference of credit to the ship is removed."
In the case at bar the effect intended to be given to the method of making the accounts is the reverse of that in The Patapsco, but the observation cited applies here. In each case the accounts and vouchers, as kept and rendered, fail to agree with the actual credit. given, and also in each case they are insufficient to overcome the weight of the more important and persuasive facts. Having thus determined that, in the present case, there is not enough in the vouchers and receipts to weigh against the effect of the formal contract between the parties, it is clear that there is nothing in the peculiar expression which we have cited from the note, minimized, as it is, by the other facts to which we have referred, to influence our judgment on the question of fact involved.
The circumstances of The Havana, decided by the district court for the Eastern district of Pennsylvania (87 Fed. 487), and affirmed by the court of appeals for the Third circuit (35 C. C. A. 148, 92 Fed. 1007), are strikingly like those at bar, and the result was the same as that reached in the circuit court. Referring to the fact that the libelants relied on the manner of charging supplies on their books, the district court observed that they were made in the method common to all cases where the owners are looked to for payment, the vessel being named simply to identify the work. It appears at page 489 that the bills were made against the vessel and her owners. The court added that "they would be naturally so made, whether a lien existed or not." The court of appeals, observing, in substance, that where repairs are ordered by an owner, even in a foreign port, no lien is presumed, and that in the case before it there was nothing to show an understanding or assent by the owner that the Havana should be subject to a lien, affirmed the decree of the district court dismissing the libel. In view of the conclusions in The Patapsco and The Havana, and considering the effect which we must give to the various facts appearing in the case at bar to which we have referred, when grouped, we are of the opinion that the decree of the circuit court should be affirmed.
One other topic, however, deserves comment. The petition alleges that the coal could not have been procured except on the credit of the vessels. The answer denies this allegation, and we have already seen that there is no proof in the record in support of it. On the other hand, the frame of the contract between the parties, together with the evident understanding, as shown by the facts to which we have referred, that credit was to be given until the end of the season, lead to the conclusion that the Ogdensburg Transit Company had credit, as we have already said. The rule