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    Elisha W. Chester, plaintiff and respondent, vs. Joseph J. Comstock, defendant and appellant.
    1. No one, having a reasonable ground to believe in the existence of a fact without any to doubt it, is bound to push his inquiries as to the fact, so as to discover the truth, before, without responsibility, he can state its existence, in a negotiation. His statement of it, however false, can never be fraudulent without an intention to deceive.
    2. Where the seller of a claim against a third person, represented to its buyer, the debtor to be “ perfectly good,” and that “ there would be no difficulty in getting the money” if judgment was recovered against him; that he was “ abundantly good, very wealthy and had a great deal of property;” and the evidence showed that such seller had reason to believe such statements true, and none to the contrary, and that until a short time before such representations were made, the debtor was generally reputed to be solvent, and any difficulty in his pecuniary condition was only known to a few confidential friends, counsel and employees; Held, that such seller was not liable for the falsity of such statements, because he did not exercise the ordinary care of a prudent man, in endeavoring to ascertain the truth of such statements before he made them.
    3. No recovery can be had in such a case, where-the complaint does not allege that such representations were made for some purpose. Their mere falsity, without some deception practiced or intended, is no ground of action. It is only where a party negotiating a transaction undertakes in it to tell all he knows, that he is bound to do so, unless there is some relation of confidence between both parties. •
    4. Representations by a seller, which merely extol the character of an article offered for sale, such as, in the case of a claim against a third person, that he is rich, has a great deal of property, is abundantly able to pay all claims against him, and can pay the claim if recovered, are to be expected by buyers, very usual, and too vague to be the basis of an action. If a buyer desires more, he should have the statement reduced to more certainty, or insist on a guaranty. Such statements, without some other concomitant circumstances or expressions, are mere expressions of opinion, for which a vendor is not responsible.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard June 29, 1867;
    decided January,—, 1868.
    Appeal from a judgment entered upon the report of a referee.
    On the 18th day of February, 1860, the defendant was the owner of a contract made by him in July, 1858, with one Stewart, of Detroit, for the sale of certain steamers owned by the latter, and claimed to be entitled to recover from the latter on that contract, the sum of $10,000. On that day the defendant sold and assigned such contract to .the plaintiff, by an assignment in writing, with a covenant against any acts on his part impairing the claim. The plaintiff had previously been consulted, as an attorney, by the defendant, in reference to the legal validity of the claim, and had undertaken to prosecute it on shares, but subsequently proposed to purchase the claim outright, and himself drew the assignment. The consideration of'the purchase was $4338, part of which consisted of an indebtedness due from the defendant to some friends of the plaintiff, which the latter assumed, and the residue of- a small sum due to the plaintiff himself, which he discharged. After receiving the assignment, the plaintiff took steps to enforce the demand against Stewart. He established the claim and recovered judgment upon it; but Stewart proved to be insolvent, and nothing was collected. The judgment was recovered in New York in June, 1862, and execution returned unsatisfied in December following. He also took proceedings in Michigan, which he discontinued upon recovering judgment in New York. Stewart died in Detroit in 1862 or 1863, where he had lived for the previous fifteen years; was insolvent at the time of his death; he had been secretly embarrassed for several years, and was probably ins'olvent at the date of the plaintiff’s purchase. In January,. 1864, the plaintiff commenced this action to recover of the defendant $12,633, the amount of the judgment he had obtained against Stewart, upon the allegation that the defendant, on making the sale, had undertaken and pi’omised that Stewart was “good, solvent and responsible.” The case was referred, and upon the opening of the trial, the referee held that- the contract between the parties as contained in the written assignment, could not be enlarged by parol. The plaintiff then moved to amend by changing his cause of action to one. for fraud and deceit. The amendment was allowed under exception, and the words “ falsely and fraudulently,” were then inserted in the complaint. The plaintiff proved that prior to his purchase of the claim the defendant “ represented and stated to him that Stewart was perfectly good,” was “very rich and very wealthy,” &c. and that on the day of the assignment he said, after having signed it, “ if you get judgment you will have no difficulty in getting the money.” There was no evidence that these statements were not made in good faith, or that the defendant had the slighest suspicion that Stewart was not wealthy. He offered but was not permitted to show that he had never heard any thing against his solvency. He was allowed to, and did, testify that at the time'of the transfer of the claim he believed Stewart^to be a “ man of wealth and position.” This was not contradicted. The referee’s finding on this point was not that the defendant knew his statements to be false, or did not believe them to be true, but simply that he made them without exercising “ ordinary care and prudence to ascertain whether they could be made with truth or not.” Upon this conclusion, he rescinded the arrangement, awarding to the plaintiff, not the amount claimed, but the amount he had paid with interest, and his expenses in prosecuting the demand.
    ' Judgment was entered' accordingly, and the defendant appealed.

      S. P. Nash, for the appellant, defendant.
    I. The decision of the referee obliterates all the distinctions between causes of action upon contract, and those which arise out of fraud or deceit. • It is without authority and utterly untenable.
    1. Statements and representations may be so carelessly made, that the recklessness in making them may be evidence of fraud, and excuse express proof that they were made with knowledge of their falsity; but if they are not found as a matter of fact to have been fraudulently made, the party making them is not responsible for their truth, if by his contract he do not.undertake to be.' A purchaser may always exact a warranty; if he omit to do so, the rule is eaveat emptor; unless deceit is shown, which means dishonesty, not carelessness. In late cases, where a party making false representations has been held liable for the truth of them without express proof of scienter; (see Mead v. Bunn, 32 N. Y. Rep. 275; Bennett v. Judson, 21 id. 238; Sharp v. Mayor of N. Y., 40 Barb. 256; Craig v. Ward, 36 id. 377; Yates v. Alden, 41 id. 172; Graloupeau v. Ketchum, 3 E. D. Smith, 175;) they were found to have been made fraudulently; but representations made innocently, are not a ground of action for fraud, though they turn out to be untrue. (Hubbard v. Briggs, 31 N. Y. Rep. 518, 530. Wakeman v. Dalley, 44 Barb. 498. Binnard v. Spring, 42 id. 470.)
    2. The alleged misrepresentations were not assertions of fact as within the defendant’s own knowledge; they were statements, which in their nature implied that the .party making them was governed by appearances. The public is continually imposed upon as to the supposed wealth of individuals ; to say of a man that he is rich, rarely implies that the speaker knows intimately about his affairs. The defendant had trusted Stewart, knew him as a man who lived luxuriously, and engaged in large business enterprises, and honestly assumed that he was wealthy. The plaintiff, himself, urged the purchase as a speculation, but, though disappointed in the profit of it, did not try to prove, that the defendant had been guilty of any intention to cheat him.
    II. The plaintiff claimed to be entitled to recover the full value of the demand against Stewart as a collectable demand. The referee, as if conscious that the action could not be sustained upon the ground of fraud, seems to have gone upon some theory of mutual mistake, and undertaken to rescind or reform the contract, by restoring to the plaintiff what he had paid, and directing an assignment to the defendant of the judgment against Stewart. But the action is not sustainable in any such view, any more than as an action on the case for deceit, which is the frame of the .complaint.
    1. The alleged deceit not having been established, the complaint should have been dismissed. The case was not tried as an action for equitable relief.
    2. The case was not for rescission on the ground of mistake. This, too, is an equitable action and required evidence that the agreement, as reduced to writing, failed to express the contract of the parties. The plaintiff himself drew it, and did not pretend to testify that the defendant undertook to guaranty the collectability of the claim. He did covenant that the demand had not been impaired by any act of his, but nothing more. (See Botsford v. McLean, 45 Barb. 478; Nevius v. Dunlap, 33 N. Y. Rep. 676.)
    3. To sustain an action at law, to get back money paid by mistake of fact, it is requisite that the mistake be one that totally avoids the payment, at the time it is made; as where money is paid to the wrong person, or the like. But this doctrine does not apply, where the mistake complained of is simply, that the party would not have paid so much, if he had known all the facts. (See Price v. Neale, 3 Burr. 1354; Franklin Bank v. Raymond, 3 Wend. 69; Id. 412; Wheadon v. Olds, 20 Wend. 174; Bank of Commerce v. Union Bank, 3 Comst. 230.)
    4. To recover money paid by mistake, the party paying must act promptly after discovering the mistake. (Canal Bank v. Bank of Albany, 1 Hill, 287. Thomas v. Todd, 6 id. 340.) Here the assignment to the plaintiff was in 1860. He brought this suit in 1864.
    HI. The referee had no power to amend by changing the nature of the action. The decision, allowing such amendment, was therefore erroneous.'
    IV. The evidence was totally insufficient to warrant the findings of fact excepted to. The alleged representations were made before any proposition was pending to transfer the claim, and while the. plaintiff held it as defendant’s attorney for the purpose of collection. The plaintiff, him- • self, proposed to purchase, and his letter shows conclusively that he took it at his own risk. The court will look into the evidence of the alleged representations, as it is that of the plaintiff himself, and his only ; upon his own statements it seems quite clear that the judgment cannot be sustained, without overthrowing principles as long settled as any in the law.

      A. J. Vanderpoel, for the respondent, plaintiff.
    I. The appellant is bound to make good his representations. It is immaterial whether he knew or did not know of Stewart’s insolvency. He obtained money of the respondent by a representation, false in fact; and as the respondent relied entirely on these representations, the appellant cannot relieve himself from responsibility by setting up his ignorance in the matter. He professed to know Stewart’s condition, obtained money on the assertion of his responsibility, and it was a fraud on the respondent, whatever the belief of the appellant in the matter was. If Stewart had been at the time what the appellant represented him, and by some means had become insolvent afterwards, then the appellant would have stood in a different position.
    II. The exceptions of the appellant to rulings on the trial, consisting of three; one to the referee’s refusal to dismiss the plaintiff’s complaint on the closing of his evidence, and the others to the ruling out two questions proposed by the appellant, viz : “ When did you first hear (how early) any thing affecting Stewart’s insolvency?” “Had you ever heard that his paper had been protested ?” are not well taken. It is scarcely necessary to discuss these exceptions, especially after the appellant had been allowed to testify, that at the time of making the assignment to the respondent, he believed Stewart to be a man of wealth and position. That testimony was improperly admitted.
    III. As to the exceptions to the referee’s findings of fact:
    1. The fifth finding of the referee is well sustained by the evidence, not contradicted by the appellant; and so exceptions first and second fail.
    2. The seventh' finding is correct, and, of course, - the third exception bad.
    3.. The fourth exception ■ (to fourteenth finding) has no toundation to rest on, there being no evidence of any care or prudence on the part of the appellant to ascertain whether his representations were correct. And the omission to find what the plaintiff' believed, is only an omission on the part of the referee to claim a knowledge of the operations of another’s mind. If any thing had- depended on the belief of a party who had professed, absolutely to Jcnow, then the utmost that would be required of a referee would be to find that he had reason to believe or disbelieve.
    4. The fifth objection was bad. 1st, because the respondent was bound to prosecute this claim to judgment; 2d, because there is no evidence that the insolvency of Stewart was known to the respondent till the return of the execution; 3d, because then he had a just claim to what he has demanded in this action, payment by the appellant of the amount of the' judgment against Stewart, to entitle the appellant to an assignment of the judgment.
    IV. The exception (sixth) to the referee’s conclusions of law, is sufficiently answered by the evidence, that the appellant made the very strongest assertions of a matter as within his knowledge, and of which" the respondent had no knowledge, which assertions were wholly false, and on these assertions obtained the respondent’s money, and induced him to enter into a contract, involving, besides the money paid, much of labor, professional skill and responsibility. (Mead v. Bunn, 32 N. Y. Rep. 280. 1 Story on Contracts, § 506, et seq. Bennett v. Judson, 21 N. Y. Rep. 238. Craig v. Ward, 36 Barb. 377, see p. 385. Galoupeau v. Ketchum, 3 E. D. Smith, 175. McFaran v. Taylor, 3 Cranch. 280. Hazard v. Irwin, 18 Pick. 95.)
   By the Court, Robertson, Ch. J.

The fraudulent representation on which the case depends, which was put at issue by the pleadings, was the assertion of the defendant that a Mr. Stewart, against whom he held the claim mentioned in the complaint, sold by him to the plaintiff, was “ wealthy and abundantly responsible for any judgment that might be recovered against him.” The referee found that he had made a somewhat different representation, to wit, '“that Stewart was perfectly good, and if any judgment was recovered against him, there would be no difficulty in recovering the money ;” also, that “he was very rich, very wealthy.” And, again, on a subsequent occasion, when executing the assignment, the defendant, addressing the plaintiff, said: “If you can get a judgment you will have no difficulty in getting the money.” The referee also found as fact, not only that such representations were false in fact, but that Stewart, when they were made, “was greatly embarrassed, in insolvent circumstances, and unable to pay his debts.” Yet he also found that “ there was no evidence tending to show that the defendant knew them to be false,” or that he “ did not believe all that he uttered, touching the responsibility of Stewart.” But, (by way of qualification of such previous findings,) that the defendant did not exercise ordinary care and prudence to ascertain whether they could be made “ with truth.” Unless, therefore, the failure to exercise such prudence amounted in law to a fraud, the defendant' stands acquitted by the' report, of all fraud or evil intent, at least so far as his belief is concerned.

Uncontradicted evidence in the case shows that the defendant had some reason to believe his statements of Stewart’s means true. He had seen- his residence, with its furniture, ornaments and works of art,' his style of living in luxurious ease, maintaining horses and carriages. He also knew that he had lately received $150,000 for two steamers sold by himself for him. And there is no evidence in the case to show that he had any reason to suppose that insolvency lurked behind such a goodly outside show, or to doubt the reality of the wealth, it seemed to indicate. The referee therefore, having gone so far, should have gone farther and stated what there was in the caseto impose upon the defendant any duty of making further inquiries before he ventured to make the statement he did; but his report is silent as to the extent of the defendant’s knowledge .of Stewart’s affairs, the circumstances which should have prompted him to inquiry, the resources which lay open to him for investigating Stewart’s condition in February, 1860, including the publicity or privacy of the real state of his affairs, which were proper elements of forming a judgment as to the propriety and success of further inquiry. The referee might, therefore, have gone further than he did, by finding not only that the defendant believed his statements to be true, but -had some reason to do so, and none to think the contrary: Yet he seems to have considered his finding of want of proper eare and prudence in the defendant in verifying his statements before he made them, as antagonistical to the beneficial effects of acquitting him of guilty knowledge of their falsity. This would not be its legal effect, unless a person who makes a statement of a fact connected with the subject of a sale, in general terms, founded upon what warranted a belief in his truth, is bound to set out upon a new investigation to discover whether it is accurately and literally true; in other words, whether he actually warrants it to be true. When a person trusts to a representation he trusts to the honesty of the party making it; if he wishes more he should require a warranty. If any circumstance of suspicion had come to the' defendant’s knowledge tending to raise a doubt as to the truth of his general statement, he was bound either to disclose it or investigate it to its source; but there was no proof of any, in this ease. I am at a loss, however, to understand upon what principle, a party, having some reason to .believe a fact to exist and none to raise a doubt of its existence, is under any obligation to investigate further the proofs of its existence, before he can with safety venture to state that it exists, or his belief in it. If he has such reason, and none to the contrary, his statement can never be fraudulent, however false it may be. The ordinary business of life could never be carried on, if such responsibility rested on every man who made a statement of a fact.

But if the referee intended not only to find the insolvency of Stewart, but also supposed of inferred his condition to be either so publicly known, or with such inquiries as a man of ordinary prudence would make, likely to be discovered, it becomes necessary to sift the evidence as to such condition, its causes and its and their publicity, or secrecy, since the mere fact of embarrassments does not necessarily imply that insolvency could be discovered by ordinary inquiries in the face of the apparent possession of wealth.

Six witnesses living at the former residence of Stewart (Detroit) and far distant from the residence of the defendant, were examined respecting the actual and apparent pecuniary condition of the former. Four of them (Gray, Romeyn, Pond and Jerome) were practicing lawyers there, and all of them appear on different occasions to have been consulted by him professionally, and derived the far greater part of their knowledge of his affairs mainly, if not entirely, in consequence of the confidence necessarily reposed by him in such professional capacity. They .were allowed to give as evidence their opinions, derived from such information, of his insolvency at the time of making the representations in question, and three of them were permitted to add to them knowledge acquired afterwards. Gray only acquired “a full and thorough knowledge of his debts and property” in the early part of 1861. Romeyn (who was his counsel from 1858 to 1861,) gave some details of some suits against him in 1857 and 1858. Pond was retained by him in August, 1860, (until which time he had no special knowledge of his affairs,) to defend a suit against him, on a mortgage given in 1857. Jerome looked into his affairs with him in November, 1859. Gray, after testifying that “ Stewart, for a number of years, was reputed to be a man of great wealth, constantly engaged in extensive operations,” owning “a large amount of property” and owing a large amount of debts; that ufor many years after ” he “ first knew him (1847) his credit was good, and he was generally deemed good and responsible,” stated, that “a short time before 1860 his credit began to fail in general estimation.” Romeyn, after describing him to be, in 1858, “ a man controlling large resources, but in bad credit, not paying his paper at maturity and constantly embarrassed,” stated that his dwelling house was mortgaged prior to 1860,” and that in May, 1860, “ he executed a chattel mortgage on his household furniture, plate, pictures, ¿•e. to secure * * more than $20,000.” He further stated that Stewart’s paper had been “under protest for large amounts; in 1857 he was sued * * in a case where some $10,000 was recovered; * * early in 1858, there were suits against him on commercial paper.” Pond, after-stating that “ up to about the year 1859, Mr. Stewart was reputed to be wealthy, and was engaged in large business transactions,” added, “in the latter part of the year 1859, he became much embarrassed in his pecuniary circumstances. His paper was dishonored and suits were brought against him thereon, and his circumstances continued to grow worse, till the time of his death.” He acknowledged, however, that his “ knowledge of Mr. Stewart’s affairs, before the summer of 186.0, was very general and derived from” others. Jerome thought Stewart was “in bad credit in February, 1860, and for a considerable while before.” Mr. Ward,' (apparently an intimate friend) who was constantly consulted by Stewart respecting his affairs, previous to February, 1860, after saying of him, “ he was then a man of large business operations, but in poor credit,” added that he “ pledged all his available property as collateral security.” Stewart’s confidential clerk, (Sanger,) who was also manager of a bank, of which the former was the principal owner, after stating him to be a “ large borrower of money, who did not meet his paper promptly or pay his employees, or for improvements made on his property, to a large amount,” admitted that prior to 1860, “he had large amounts of property in his hands,” although heavily encumbered, and “ of which he had never paid all the purchase money.” But he further testified that suits were constantly brought against him on overdue paper of his,” and that he was “constantly living * * on borrowing money from one man to pay another.” An execution levied upon his household furniture in 1858, was paid by his friends. This, with the testimony of the defendant already alluded to, constitutes all the evidence of Stewart’s real and apparent condition in 1860, and all the means presented to a stranger for discovering the former, except the opinions of his counsel, already referred to (which are objectionable as evidence, in any aspect of them,) and testimony relating to dates after February, 1860. It, however, raises the question, with such external indicia of wealth and apparently continuous prosperity for several years, what means might, could or would any ordinarily prudent man have adopted, if any, to have ascertained its reality, before he asserted it, on the sale of a claim against him.

In answering such question, it is proper to notice of what property by the evidence, Stewart appeared to be the owner about February, 1860. He occupied a well appointed dwelling house, (his own, although mortgaged,) containing furniture and .works of art, on which, in May subsequently he was able to borrow $20,000,. the whole fully sufficient, unless encumbered, to pay the claim of the plaintiff. He had either towards the end of 1858 or in 1859, received $150,000 for the steamers sold for him by the defendant. He owned the property mentioned in the complaint, in this state. He was “ chief owner ” of “ The Peninsula Bank.” According to his confidential clerk, (Sanger,) “ he had considerable amounts of property in his hands.” According to Gray “he owned a large amount of property.” And according to Romeyn, in 1858, “ he controlled large resources.” He lived expensively, and kept horses for his private use. ■ His credit, as stated by Mr. Gray, for many years after his first acquaintance with him, (in 1847,) was good, “he was generally deemed good and responsible.” “ He was reputed to be wealthy, (Pond states,) up to 1859.” It was at the end of that year, his inextricable embarrassment seems to have begun. “His credit,” according to Gray, “began to fail a short time before 1860, “ in general estimation.” It was not, however, until 1861, the latter discovered Stewart’s insolvency. His furniture seems to have remained unencumbered until May, 1860. The time when “he became much embarrassed in his pecuniary circumstances” from which onward they gradually grew worse, is also fixed by Mr. Pond' as being “ the latter part of 1859.” The same witness, however, admits that he was not sued for a mortgage given in 1857, until three years after it was given, (August, I860,) and three suits against Stewart, which are the only ones he specifies, were not brought until the spring, and in April and September of that year respectively. . Although urged to make an assignment in February, 1860, by his friend and adviser, Ward, he réfused to do so. Mr. Jerome, who in November, 1859, on a thorough examination, had found his assets to fall $200,000 short of his liabilities, merely says vaguely and in general terms: “In February, 1860, he was not a man of wealth, and had not been for many months previous thereto. He was in had credit then, and had been so for a considerable while.” Even Romeyn only fixes his “open and avowed insolvency” as occurring “ subsequent ” to February, 1860, although he says “ the causes which resulted in ” it “ existed then,” and he apparently traces them back to 1857 and 1858, when he admits “ he controlled large resources,” although ' “ in bad creditf not paying his paper at maturity and constantly embarrassed.” This hardly coincides with the testimony of Gray arid Pond, -and can only be explained by the possibly more intimate knowledge of his affairs by Romeyn, and his occasional temporary difficulty of 'meeting engagements, which was subsequently overcome. He appears to have always commanded the confidence of his friends, either by his means or his capacity to redeem his affairs from temporary difficulty. They paid the execution on his furniture in 1858. As Sanger describes him, he was “a large borrower of money,” “he was constantly borrowing from ■one man to pay another;” and as Romeyn says, “he controlled large resources.” This accounts for keeping up his credit until 1860. He did not even then, apparently, dis-pair of being able to recuperate, as he' refused to make an assignment, and his creditors do not seem to have attacked him until April, 1860. The suits in 1857 and 1858, spoken of by Romeyn, must have been disposed of before 1860, or else lasted until after February of that year. At all events they did not interfere with the credit of Stewart as testified to by Gray and Pond. ■ But even if the defendant had discovered by diligent inquiiy, all the embarrassments of his debtor prior to 1860, he would not necessarily be bound to conclude he was not wealthy or able to pay his claim. Many a man in active business, who not only holds a large amount of property, but is actually wealthy, may, at least in this country, have it encumbered; be largely in debt, occasionally fail in his engagements and frequently borrow large sums from his friends. Still more, who are reputed to be wealthy under such circumstances, but not in reality so, frequently rise by the chances of commerce, from such a state of tottering.equilibrium to stable fortunes. The true condition of the latter is rarely suspected, except by friends or those dealing with them. If not suspected, it is still more rarely discovered except by the uütiring vigilance of some constant spy or enemy.

It is very evident that- ordinary inquiries at Stewart’s place of residence, (Detroit,) would only have elicited the facts publicly known and already mentioned, of his possession of property, being in debt and borrowing money, and that his credit was good until 1860; whether he could have ascertained the change in the latter is .problematical, since the witnesses do not state how public the knowledge of his embarrassment was. I presume it would not be contended that the defendant was bound to examine the records of the courts of the state of New York, where Stewart did not reside, or even of Michigan where he did, to ascertain what suits had been brought against him,.or their fate, or have gone to all the notaries in the city of New York to have ascertained whether he had any commercial paper protested.

It is somewhat singular that the only witnesses introduced to prove the hollowness of Stewart’s appearance of wealth, were his four counsel, who had obtained their knowledge professionally; his friend, to whom in seeking his advice, he had laid bare his whole affairs; and his confidential clerk. I doubt very much whether, if the defendant had made inquiries of either, he would have been as successful as the plaintiff has been in procuring the required information. They probably would have been then loth to betray his confidence. No one of the external community, in which Stewart lived, has been produced, to show how much information could have been obtained by a resident of New York, by general inquiries in Detroit.

The report of the referee does not furnish us with any standard- or test of the ordinary care and prudence, which he supposed the seller of an article ought to exercise in order to ascertain whether he could make any representation respecting it with truth; nor have I been able to discover that there was any thing peculiar in this case, which imposed the duty of inquiring into Stewart’s responsibility upon the defendant, before he made the representation in question. The defendant did not undertake to give any details respecting Stewart’s affairs; he merely states a general conclusion, that he was rich; and that the plaintiff would get his money if he recovered judgment against him. It is impossible to ascertain, what efforts the referee supposed the defendant ought to have made, in exercising ordinary care and prudence to ascertain Stewart’s real condition, although only bound to exercise such diligence as was ordinary. "With seeming outward solidity up to the very time of the representation, the hollowness of the prosperity of Stewart was known only .to a few confidential friends, employees and counsel, and not suspected by any of the public, until very shortly before such representation. It is, therefore, rather puzzling to know where the defendant should have begun his inquiries to verify his statement. The knowledge already possessed by the defendant, was such as ordinary prudence might have been satisfied with. I cannot, therefore, come to any other conclusion on the evidence, than that there were no inquiries, which a person of mere ordinary prudence would have been likely to make that would, except by accident, have given the defendant any more information than he had, and therefore, that if he had then, for the first time, obtained that information, he had obtained enough to warrant his making the representation he did, and there was no evidence to show that a man of ordinary prudence would require more. The finding of the referee, if he means to say the defendant could have discovered the untruth of his statement by the exercise of ordinary prudence, I therefore consider as unsupported by evidence as it is by probabilities.

If, however, the referee held that there was any obligation on the defendant merely to make further inquiries without regard to their result, before he made the representation he did, he being warranted in, or having some reason for making it, from what he knew, it was a mistake of law. If there was any thing suspicious in what he knew, as I have said,' he was bound to disclose it or investigate the justice or injustice of his suspicion, but not otherwise. There is neither reason nor authority for any such doctrine, nor was it contended for on the argument.

The report of the referee finds in the alternative, that either the next day after the defendant received the plaintiff’s letter of the 17th of February, 1860, offering to buy the claim in question, (18th,) “ or in a previous interview, proposed to the plaintiff that he should take such claim,” and “ at the same time or times represented to the plaintiff that Stewart was -perfectly good, and if a judgment was recovered against Mm, there would he no difficulty in recovering the money, and in the same representations stated, “ Stewart is very rich—very wealthy,” and also at the time of executing the transfer of such claim, stated, “ If you can get judgment, there will be no difficulty in getting the money.” And also that “the plaintiff relied upon such representations, and was thereby induced to agree to discharge the indebtedness of the defendant, and accept “ such transfer as a consideration therefor.”. The referee, therefore, either meant to acknowledge an inability to determine which event preceded the other, the writing of the plaintiff’s letter or the making of the representations as found by him, or considered their sequence in order of time immaterial. I think, however, it will be found so material, whether such representations were made before or after such letter was written, that it becomes proper to examine the evidence in relation to it. The plaintiff, on his direct examination, (as a witness for himself,) stated that the negotiations for the transfer had been made some days before “it was executed, and although on such direct-examination he stated that the defendant ” proposed 44 that he should take the claim against Stewart on the terms subsequently agreed to, he acknowledged that he could not “tell what the commencement was,” and on his cross-examination declared his inability “to say from which party the suggestion ' came.” The plaintiff had previously agreed to prosecute the claim on shares, as the defendant’s counsel. He further testified that he became satisfied in their “ consultations,” that the claim was a good one, oh the facts' as stated by the defendant. The latter represented to him “ that Stewart was perfectly good, and that if a judgment could be recovered against him there would be no difficulty in collecting the money.” He remembered the defendant’s expressions; they “ were very emphatic.” The latter “ said much more to the same purport.” The plaintiff, however, “ didn’t remember .the exact language.” The defendant said that Stewart was abundantly good, very wealthy, and had a great deal of property. He repeatedly made use of this at the time of the assignment. On the plaintiff’s.cross-examination, however, he thought 44 the conversation he had detailed, took place on the execution of the assignment.” On being asked to state all that he recollected was said on that occasion, he answered “ 1 am unable to state with distinctness more than this; I think on executing the agreement, on laying down the pen, the defendant said, if you get judgment you will have no difficulty in getting the money.” A witness for the plaintiff (Gilmore) stated he heard “ about the time of the sale and assignment ” in question, 44 and just previous,” one or two conversations between the parties, in regard to the wealth and solvency of Stewart. The defendant said he 44 was wealthy, very rich,” and if44 the plaintiff got judgment against him, he would be sure of the money.” This testimony is perfectly consistent with the fact that the defendant made such statements to the plaintiff, before the latter agreed to prosecute the claim in question on shares, and, as he says, during their consultations, which is highly probable from their relations. If that be so, it is hardly probable that the defendant found it necessary to reiterate such mere general assertions of Stewart’s wealth in order to induce the plaintiff to purchase the claim. According to such testimony of the plaintiff, however, the whole representations are reduced to a single remark made by the defendant after executing the assignment, that the plaintiff would get his money, if Tie ■ got a judgment. The defendant, in Ms testimony denies ever making any proposition to the plaintiff to take the claim on his own account.

The plaintiff’s letter, however, of the 17th of February, 1860, contains in itself intrinsic evidence that it constituted all the negotiation, that was made for the sale afterwards concluded. The plaintiff' first speaks therein of the suggestion as coming from a third person (Dr. Patton) that he should buy the claim, as something entirely novel, and gives the reasons urged by such third party why it was advantageous for the defendant to sell the claim, to which the plaintiff' had assented; but declined risking any thing beyond his own claim, and had thereupon merely informed Dr. Patton of his previous arrangement with the defendant. He expresses his own contentment with that, but proposes to take the claim ufor the $3806 balance” and make an arrangement with “ the parties,” so as to have their claims contained, in the amount the defendant had discharged. He further therein expresses his desire to see the defendant if disposed to make the transfer on those terms, on that day, as 11 the parties wished to leave that night, but begs to be considered as not soliciting the transfer. One of those parties was the witness Gilmore. The plaintiff drew the assignment ; it was executed at his office the next day after such letter was sent. Nothing was said in such letter of any previous negotiation. No inquiry was made as to Stewart’s responsibility. The plaintiff made an unconditional offer and it was accepted and carried out next day, probably as early as possible, in order to allow the holders of claims against the defendant to leave. Any representations made by the latter, which induced the plaintiff to adhere to his offer, if he was desirous of withdrawing it, must have been made between writing that letter and receiving the assignment, but there is no proof of any. The only one distinctly testified to, is that made by the defendant when he laid ■ down the pen after signing it. The idea of a negotiation lasting several days is thus dispelled. "Whatever impression the plaintiff had of Stewart’s responsibility derived from representations of the defendant in regard to it, was undoubtedly derived from statements made before the first arrangement, to prosecute on joint account. It is very true, that if they tended to deceive the plaintiff, the defendant was bound, if he knew he was laboring under a false impression therefrom, to undeceive him when he proposed to sell to him. But he did not. The offer came from the plaintiff undoubtedly relying on his previous impression, but not on any derived from new representations. The prophetic statement that “ if he got judgment he would get his money ” is not a representation of an existing fact, and the evidence does not warrant the referee’s finding that during any negotiation for the sale the defendant represented that Stewart was abundantly able to satisfy any claini against him. Both the allegations in the complaint, and findings in the report, either that the defendant made the representation to the plaintiff therein set forth, when he proposed to sell his claim to him, or that he ever proposed to sell it to him, are thus not only unproved, but disproved. And if the case turned upon that, it would render the judgment erroneous.

There is also no allegation in the complaint, nor is it found by the referee, in his report, that the defendant made any of the misrepresentations therein stated for any particular purpose. A general charge of making them fraudulently was inserted in the complaint on the trial before the referee, where no opportunity was offered of compelling the plaintiff to make his complaint more definite and certain and point out the particular purpose intended to be answered by such deceit. In this case, the only deceit which could be inferred to have been intended to be practiced by the defendant, in making any of the representations proved, if made by him fraudulently, must have been to induce the plaintiff to engage to prosecute the claim on shares. But if he afterwards made a new agreement with the plaintiff knowing that the latter was still laboring under the deception practiced, the fraud would have consisted principally in not undeceiving him. And it may be well doubted whether the effect of such representations, even if false and fraudulent, made Without reference to any purchase, could render the latter void.

The case, however, was-relieved from any embarrassment arising from the findings of the referee by the plaintiff’s counsel in the course of argument adopted by him. He claimed the responsibility of the defendant as resting upon his false representation of a fact which he professed to know; and his obtaining value on the faith of its being true. There is, however, not a particle of evidence in the case, that the defendant professed that he knew, what he asserted to be a fact, to be so, unless its mere assertion is equivalent thereto. There is a vast difference, however, between the two. If a man asserts a fact not necessarily within his own knowledge, he simply avers that he knows facts sufficient to induce any one of ordinary understanding to believe that it is so. When he asserts that he knows it, he means to say that the occurrence or existence of that fact has been made known to his senses, and it excludes all inferences from mere hearsay or circumstantial evidence of it. When any one dealing in an article undertakes to say what he knows respecting it, he is bound to disclose exactly what he knows, or becomes responsible, if what he states is not true. But that is upon the ground of presumed fraud. The defendant is, however, hot liable, upon any such ground.'

The present action is for damages for a fraudulent representation, to which the plaintiff changed it, by his amendment before the referee; he cannot, therefore, recover for the mere falsity of the statement alone. The motion to dismiss the complaint on the trial was based upon the want of proof of any fraud. Mere falsity without fraud, forms no ground of recovery. (Hubbard v. Briggs, 31 N. Y. Rep. 518, 530. Young v. Covell, 8 John. 24. Wakeman v. Dalley, 44 Barb. 498. Binnard v. Spring, 42 id. 470. Russell v. Clark’s Ex’rs, 7 Cranch, 69. Tryon v. Whitmarsh, 1 Metc. 1. Stone v. Denny, 4 id. 151.) The language used in some cases, such as Mead v. Bunn, (32 N. Y. Rep. 275;) Bennett v. Judson, (21 id. 238;) Sharp v. Mayor of New York, &c. (40 Barb. 256;) Craig v. Ward, (36 id. 377;) Yates v. Alden, (41 id. 172,) and Galoupeau v. Ketchum, (3 E. D. Smith, 175,) where all allusion to fraud is omitted, must be understood as being merely directed against other objections, because fraud was established in all such cases, and its absence was not made an objection.

The representations too, on whose falsity the plaintiff relies, were evidently of that general kind, which consists of extolling the character of articles a vendor has to sell, as in this case, that the person against whom the claim existed, that was sold, “ was wealthy, was rich, had a great deal of property,” was “abundantly able to pay all claims” and “ could pay the claim if recovered.” It is what every buyer must expect, and if he desire any more special information he should catechise the seller as to the grounds of his belief, or insist on a guaranty. It is in form an expression of mere opinion, and not a representation for which the vendor should be held responsible. The plaintiff perhaps incautiously relied on the defendant’s means of information as more extensive than it was, or his conclusions being sounder than they were; but there is no evidence to charge the plaintiff' with fraud. The claim was not utterly-worthless; there was a spes recuperandi, however small.

I think the judgment should be reversed, and anew trial had, without costs to either party,- the order of reference to be vacated.


source: Caselaw Access Project

author: By the Court, Robertson, Ch. J.

license: Public Domain

text:
    Miles Coryell, plaintiff and respondent, vs. William Perine et al. defendants and appellants.
    1. Where a person enters into a contract with the United States government to build, equip and fit out a steam vessel for it, on account of the price of which, such government is to make certain advances as the work progresses, and have a lien upon the vessel therefor, no claim on such vessel, by the government, for advances made by it, will injure the lien on such vessel acquired by one who has furnished materials and labor for building the same, so as to destroy the validity of any bonds given by such contractor to procure the discharge of the vessel from attachments issued to enforce such lien.
    2. The obligors in such bonds are liable thereon for any claim of a creditor that is a hen on the vessel, whether it can be enforced against her or not. Even if the United States government had a hen, which would be an obstacle to the enforcement of the creditor’s hen, the obhgors will be deemed to have waived all objection on that ground, by executing bonds to procure a discharge of the attachment.
    3. Where the United States government had no right of possession under a contract for building a vessel for it, until completion, or default of the contractor; Held that the mere covenant for a lien by it on the vessel for advances, contained in the contract, was ineffectual, as are all hens without possession, when not created by statute. Such a contract for a hen creates only an equitable hypothecation. Under such a contract there is no transfer of ownership, until the vessel is delivered and accepted. When the contract itself provides for a subsequent dehvery and acceptance of the vessel, the right of the government to take possession, on default, and finish the work, implies that until that time the possession and ownership continues in the contractor.
    4. The act of congress of July, 1862, which puts contractors for supplies under the same military control and discipline as the land and naval forces of the United States, is not so applicable to vessels or their appurtenances, as to put such vessel, or indeed the supplies themselves, under the control of United States officers.
    5..It is fully settled that a contract for building a vessel, or furnishing materials, or doing work therefor, is no more a maritime contract, so far as a lien therefor may be created, on such vessel, by state laws and enforced by state courts, than building a house or doing any work upon any article by which a lien may accrue upon the subject of such work.
    6. A creditor is entitled to a lien for the value of every thing necessarily consumed, and for every expenditure necessarily incurred, in completing the tyork performed by him, and is not confined to the mere work done upon parts of the vessel, or materials furnished which remain as part of its structure or equipment. The use of the preposition “.towards," as well as "for,” in the statute, shows the intention of the framers of the statute to include all materials consumed, as well as those entering into the composition of the vessel or any of its appurtenances.
    (Before Robertson, Ch. J., and Garvin, J.)
    Heard October 23, 1867;
    decided January —, 1868.
    This was an action upon two "bonds under seal, executed by the defendants to the plaintiff in October, 1865; the first in the penalty of $21,000, dated the fourth, and the second in the penalty of $25,000, dated the twenty-first of that month. Each of such bonds recited the issuing of a different warrant of attachment against a. steam tug or vessel, (The Triana,) by a different justice of the Supreme Court, to enforce a lien of the plaintiff for separate claims upon her, and an intended application for their discharge, the first warrant being issued in September, 1865, for upwards of $10,000, and the second on the 19th of October following for upwards, of $12,000. The condition of each of such bonds, respectively, was that the defendants or their representatives should pay the plaintiff the amount of all claims and demands established to be due to him and to have been “ subsisting liens ” upon such vessel, her tackle, apparel or furniture, pursuant to the provisions of the act of the legislature of the state of Hew York of April 24,1862, and the acts amending the same, “ providing for the collection of demands against ships or vessels.”
    In December, 1863, the defendant Ferine, entered into a contract with the government of the United States to build, equip and fit out the hull, spars, rigging, sails, boats, steam machinery and other enumerated appurtenances, and all the equipments and outfits connected therewith, necessary for an iron screw tug boat of about 350 tons, “ to be delivered afloat in every respect fit for sea service.” Such vessel, machinery, equipments and outfits were to conform to specifications and drawings furnished. . The materials to be of the best quality and free from defects, the equipments and outfits to conform to those used in the "United States navy, and both to bear the tests of similar articles made in the naval service. Persons appointed by the navy department to inspect the work, were to have the right to reject at any stage of it, materials or articles considered by them defective, either in material or workmanship, and every part and arrangement were to be satisfactory to them. Such vessel was to be completed in eight months from the date of such contract, and “promptly delivered” at the builder’s expense “to the navy department at the nearest navy yard.” The magazines and other enumerated apartments and receptacles of ammunition, and all parts connected therewith, rings, bolts and all arrangements connected with the hull and appertaining to the armament, were to accord with instructions to be given from the ordnance bureau of the navy department, and all apartments and rooms of every kind were to be conveniently arranged and fitted to the satisfaction of the government inspector. The builder was also to protect the government from all claims for fees for patents of articles used in the construction of the vessel. No officer of the government was to share in the agreement or any benefit therefrom. If they did, or there was any failure to perform the contract, the government had the option to declare it void. In case of any failure or neglect by the builder to fulfill such contract, and “ have the vessel with its machinery delivered,” as before stipulated, the navy department was empowered “ to enter into and take possession of it and direct purchases to be made of all the necessary materials and cause the vessel to be completed and fully equips ped as therein described.” Any excess of cost was to be at the expense of the builder, unless the delay was caused by the action of the navy department. The total price for every thing was to be $128,000. The payments to be made in six parts, reserving one fifth on each payment. A certain rate of increase or decrease was to be made in the amount according to the number of months the vessel should be completed before or after the fixed' date. The bills were to be presented, certified by the navy department superintendent and paid by navy agents.1 The last payment was not to be made until the vessel was finished, and the fifth of the purchase money reserved was not to be paid until the hull, machinery, equipments and outfits were complete and satisfactory to the navy department. The navy department was to have a lien on the vessel and all materials provided for the fulfillment of the contract, for the money advanced by the government upon it, and the builder was to keep as much of them as were liable to injury until delivered, insured against fire and flood, to the extent of such advances, the policies to be made payable to the Hnited States. All transfers of any interest in such contract were to render it void. The builder was to deliver within one month after completing the machinery, drawings of every piece used in its construction and general plans showing the combination of the whole in detail, with dimensions, weight and materials of every part, so as to enable it to be reconstructed. The builder and his sureties guarantied a trial trip of the vessel, under steam of a certain pressure, and with a vacuum of a certain number of inches, for six days at sea, to be successful and of such a character as to demonstrate certain good qualities of the machinery; also that. the materials should not deteriorate or depreciate, beyond ordinary friction, for three months. In case of failure during such trial trip from imperfection in the details of the design, mal-construction of machinery, fault of workmanship or bad quality or composition of materials, the navy department was to have modifications, alterations, substitutions and repairs made, to produce a permanent, or satisfactory operation at the expense of the builder. During such trip the engineer managing the machinery was to be subject to the regulations of the naval service, and the supervision of engineers appointed by the navy department, as directed by the ■ secretary of the navy.
    After such vessel was on the stocks, and nearly ready for launching, the defendant Perine employed the plaintiff to do the work of preparing the different parts of her engine for being fitted together and of fitting them to each other in her, and agreed to pay him therefor all that the plaintiff should pay for such work done for him and a quarter thereof in addition, and two dollars a day for the use of various ^achines necessary to be used in his workshop in preparing such parts of the machinery for being fitted together, (lathes, planers, Blatters and shapers.) The amounts due were to be paid every fortnight on bills rendered according to the pay roll. The time of the employment of the plaintiff’s workmen on such work, was taken down by a time keeper in his employment twice a day in a memorandum book, from whence it was transferred to a general time book for making up a pay roll every week. It contained such time, and'the wages paid to each man. At the subsequent request of the defendant, (Perine,) the plaintiff also furnished “small stores” used in building the engine, (such as files, oils, lamp wick and emery paper,) and small articles for fastening the machinery together or working it, (such as bolts, nuts, washers, valve rods and brass work,) for which he charged at the. usual rates in his bills of work rendered every fortnight, until October 14th, 1855, at the defendant’s office. The plaintiff also subsequently paid on behalf of the defendant Perine, at his request, for work done by others on parts of such engine, and finally furnished by agreement with him materials for various parts of the engine, exceeding in value $7000. By a new agreement between the parties, the plaintiff began to put up such engine in the vessel before she was launched, and finished it afterwards, at the same rate of pay for the work, as under the first agreement, for which bills were rendered.
    In such bills rendered, about ten dollars worth of wood furnished,' out of which to make small pateras, called templets, and moulds wherewith to shape parts of the machinery, was charged, as well as the cost of the labor bestowed in making them. Charges were also included in such bills, for work done a second time, in making alterations required by the government, and for materials substituted in place of others removed. Such work consisted of a new cylinder, (cast in place of a defective one,) the finishing a second throttle valve after a prior one, (whose casting was furnished by another person,) had been condemned; bonnets furnished to check valves, (supplied by other parties,) because previous ones were defective, and restoring a bilge pump which had been removed by order of a government inspector. The only other materials removed was sheet iron for the conduit or blower channels, for which boiler plate was substituted, and it was used for man hole plates. All of. such changes were made in consequence of the objections of an officer of the United States government, under the contract.
    The complaint in this action set forth that the builder of such vessel, (The Triana,) within six months before the 1st of September, 1865, contracted with the plaintiff a debt in the city of Eew York, “ on account of work done and materials furnished for and towards the building, repairing, fitting, furnishing and equipping such vessel,” between April and September, 1865, to a certain amount, ($10,386.04,) on which that sum was due and owing and a lien on such vessel. It then alleged that the plaintiff, on the 1st September, 1865, filed in the Eew York county clerk’s office a specification of such lien containing a bill of particulars of Ms demand and a statement of the amounts claimed to be due from such vessel, duly verified by his oath. It also recited' the application for the first warrant of attachment against such vessel, and its discharge upon the execution of the first bond sued upon in this action.
    The complaint also set out as a second cause of action the employment by the defendant Ferine, (as the builder of such vessel,) of the plaintiff “ to perform ” work and labor and furnish materials for and towards the building, repairing, fitting, furnishing and equipping the iron work and machinery of the same vessel until it was nearly completed, and to render an account thereof, and agreed to pay him every fortnight, as such work and furnishing of materials advanced. That the plaintiff did such work and fur-"fished such, materials between November, 1864, and October 21, 1865, amounting to $22,054.16. It alleged that in March, 1865, one John Mott, at the request of the defendant Perine, assumed the building and finishing of such vessel, and continued the same agreement with the plaintiff, who completed such work in October, 1865, when the vessel was nearly finished.
    The complaint admits that the sum of ten thousand dollars was paid to him on account of such claim, which he applied to the earliest items in the account, leaving $12,054.16 unpaid and still due. That the plaintiff, on the 21st of October, 1865, filed a proper specification, duly verified by him in the county clerk’s office, containing the particulars of his demand, which was then a subsisting lien. It also recited the application for and issuing of. a second warrant of attachment and the discharge of such attachment upon giving the second bond sued upon in this action. And the complaint demanded upon both bonds the last mentioned sum with interest.
    The answer denied the claim set forth in the first cause of action in the complaint, and that it was a subsisting lien on the vessel in question on the 2d of September, 1865, and put in issue the other matters alleged in the complaint as to such first cause of action. It also denied that the work and labor mentioned in the second cause of action set out in the complaint, amounted to $22,054.16, - and that it was a subsisting lien on such vessel on the 21st of October, 1865, and took issue on other allegations contained in such second cause of action. Such answer also contained a counter-claim for $10,000 damages, caused by the plaintiff’s delay from June to October, 1865, after agreeing to construct an engine for the vessel in question and deliver the same (without detention of such vessel) to the defendant Perine, in consideration of the payment of the value of the work and labor, and one fourth thereof in addition, every fortnight. A reply was put in to such counter-claim, taking issue upon the allegations in relation thereto in the answer, and alleged that the defendant Perine caused the delay in such work, by failing to furnish the materials for such engine and to pay such bills every fortnight when presented.
    The issues were referred to a referee (H. W. Robinson, Esq.) to be heard and determined, who made a report containing findings of fact and conclusions of law; giving judgment for nearly $13,000 ($12,969.69) for the plaintiff, upon which judgment was entered. From such judgment the defendant appealed, having filed exceptions to the report.
    The referee found by his said report, as facts, the matters alleged in the complaint, and that a claim for over $3000, ($3028.12,) not embraced in the first claim, had become a lien on said vessel, in addition, at the time of such second attachment; that a considerable portion of such debt was created by work, (for the previously mentioned purposes,) by machines of the plaintiff fixed in his shop, upon the engine and fixtures furnished for such vessel, and some portion for small stores consumed in the work, the value of the use of which machines (during the time they were employed upon such work) and of such stores was included in such debt and fairly determined its amount; that the defendant undertook the building the hull of a vessel of about 250 tons under a contract with the proper officer of the United States navy department, and her equipment with steam machinery, masts,- spars, rigging, sails, boats and other appurtenances, with outfits necessary for an iron steam screw tug boat, to be delivered afloat according to certain plans, for a certain sum, ($128,000,) of which four fifths was to be paid in six ' installments, and the residue (one fifth) on her completion and delivery and acceptance; and that it was agreed that the navy department should have a lien on the vessel and all materials provided for fulfilling such contract for the advances by the government, and that such vessel was not completed when the warrants of attachment were issued.
    The referee also found, as matter of law, that the allowance of compensation for the use of machines in doing the work in question did not affect the lien of the plaintiff; that he had such lien, for work done according to the compensation agreed upon; that in the absence of any specific agreement to furnish tools or materials for the work, proof of the value of those used aided in presenting a mode of estimating its value; that the agreement with the United States government created no lien in favor of the latter, or if it did, it could not interfere with that of the plaintiff, being without possession ; and that there were no outstanding rights in favor of the United States to interfere with the plaintiff’s lien.
    The referee therefore gave judgment for the plaintiff for the amount already mentioned, from which an appeal was taken and exceptions to such report filed.

      Thomas A. Watson, for the appellants, defendants.
    I. A new trial should be granted on the ground that it was incumbent on the plaintiff to prove the extent of his lien. He did not prove it to the amount allowed to him by the referee, and the court must, therefore, set aside the report, and order a new trial. (Phillips v. Wright, 5 Sandf. 362.)
    II. For materials which did not enter into the construction of the ship in question, the plaintiff had no lien. (Phillips v. Wright, 5 Sandf. 362. Ames v. Dyer, 41 Maine Rep. 397, 399, citing and following this decision. The Kearsarge, Ware, 2d ed. 556. Johnson v. Steamboat Sandusky, 5 Wend. 510-12. Crooke v. Slack, 20 id. 177.) Nor for use of the plaintiff’s fixtures in his machine shop. (The Kearsarge, Ware, 2d ed. 556. Nor for the patterns and the work upon them. (Ames v. Dyer, 41 Maine Rep. 399.
    HI. The judgment should, at all events, be reduced by the following:
    1. The contracts provided for fortnightly credits. The last bill was rendered on the 19th of October, 1865, two days before the bond in suit was given, and contains three charges, all dated October 14. None of these were due when the lien proceedings were commenced, as is required by the act to create a lien.

      2. The charges for boiler plate and boiler work on the Maria should have been excluded. The plaintiff introduced as his own evidence, the original bill containing memoranda of Perine’s deceased agent, made at the time -of receiving the bills; the defendants were, therefore, entitled to the effect of the. whole writing.
    IV. The act on which the alleged lien depends, is contrary to the constitution of the United States, and is utterly void. .
    1. As regards maritime contracts, this cannot be denied. (The Ad Sines, 4 Wallace.)

    2. The provisions giving a lien to builders are so incorporated with those concerning maritime contracts, that a separation is impossible, and the whole statute is void.
    V. There are no words in the statute evidencing any intent to subject the government to the operation of this remedy, or according a lien in any case affecting the government. (Smithett v. Blythe, 1 Barn. & Adol. 509.)
    1. The government is never bound by a statute, unless by express words. Especially is this the case where the remedies of the government are concerned. (Lambert v. Taylor, 4 B. & C. 152. Petersdorff’s Abr. title Prerog. vol. 18, p. 703.)

    VI. The plaintiff’s claim was not, at any time, a subsisting lien on the Triana, pursuant to the act of 1862.
    1. The “lien” so called, given by this state collection law, was not a special property or interest in the vessel. Its whole form and pressure consists of a remedy to procure satisfaction by seizure and sale. (The Globe, 2 Blatch. 433, 434, n.) It*is wholly and solely a judicial remedy, (40 Maine Rep. 392,) superior to that of ordinary creditors. The title of the act shows that, as well as its positive provisions. A repeal of it would impair nothing but a remedy. (35 Maine Rep. 74.) “ Where the title creates the proceeding * the right and remedy remain unseparated * *. In the former class may be placed proceedings for the collection of demands against ships and vessels * * which are entirely creatures of the statute by which the right and remedy are made inseparable.” (1 Code B. 112, 113, Barculo, J.) A right to have money raised out of a thing, is never held to be an interest in it. (Re Hughes, 33 Law Jour. Chancery, 727.)
    2. This lien cannot “subsist,” cannot “ entitle to a warrant” (§ 7 of the act,) when its whole essence—the. right of action—is a nullity. “ There can be no civil right where there is no remedy.” (Bank of U. S. v. Owens, 2 Peters, 539.) Ubi nullum remedium, nullum jus, is a maxim. (Gateward’s Case, 5th resolution, 6 Coke R. 60 a: Plowd. Com. fol. 11.) “It is a mockery to talk of existing rights, without applying corresponding remedies.” (Fowler v. Lindsay, 3 Dallas, 413.)
    3. The terms of the contract of the United States, (omitting the stipulation for a lien,) gave the government a jus ad rem, the mere executory right, not amounting to an interest; the specific ship might be called for and must be delivered. (Andrews v. Durant, 11 N. Y. Rey. 41, 42, 47, 51.) The additional stipulation for a “lien” to the United States, therefore, gave the government an additional right. If this right was a right in re—the general property, title, or ownership—then there is no question but that the plaintiff had no lien, since he would have no remedy to enforce it against the United States. The United States cannot be sued. (2 Andrews’ Opinions of the Attorneys General, 668.) Thus, mariners have no lien against the United States. (DeMoiety v. The South Carolina, Bee’s Adm. R. 422.) Nor . salvors. (The Comus, 2 Dodson, 464. The Thomas A. Scott, 10 Law Times, N. S. 726. The Schr. Merchant, Marvin’s Wreck and Salvage, § 222.) Nor horse feeders. (U. S. v. Barney, 3 Hall’s Am. Law Jaur. 130.) Nor material men. (Briggs v. Light Boat, 11 Allen, 248.)
    4. If it was a mere lien in the weakest sense of the word— a jus in re, a special property—the same effect will follow, for “ a lien is a right to hold.” (4 Camp. 291 , n.p. 1.) Lord Stowell so held in the case of a mail packet. (The Lord

      Hobart, 2 Dob. 103.) “ If the right itself were a lien, the government could follow the property when disposed of to others, and reclaim it.” (Storm v. Waddell, 2 Sandf. Ch. 528.) “If it were otherwise, what dreadful consequences would not result. * * * A ship carpenter might libel public ships.” (U. S. v. Barney, 3 Hall’s Am. Law Jour. 103.) So of the U. S. lien for duties. (Harris v. Dennie, 3 Peters, 298.) The last case is not evaded by referring to the statute giving the lien on imported goods. The source of the lien is utterly immaterial; if the United States has a lien, a state law can give no right of remedy against the United States. The absence of a naval officer in possession for the United States is of equal insignificance. Ferine was “ part of the naval forces of the United States.” (See extract from United States laws at end of the contract.)' The United States inspector was on board exercising arbitrary power and entire control. The state officers could not have enforced the lien remedy without ejecting both. They were in actual manual prehension of the vessel. The United States could not itself hold ; some other hand must hold for them; and Ferine, under this contract, had, at least, “a concurrent and mixed possession for the joint benefit of the” builder “ and the United States.” (Conrad v. Pacific Ins. Co., 6 Peters, 262.)
    VIL. Although the lien given by the statute is not created by agreement, yet it may be waived by the beneficiary, like any other statutory benefit. (9 N. Y. Rep. 333, 334. 3 id. 300.) But no effective sense can be given to the stipulations for a lien in the contract, unless it is held to give some useful, substantial interest, not divestible by Ferine and his material men, or at their mercy. It was inconsistent with the lien of the latter. The plaintiff contracted with notice; he thereby waived his lien.
    1. The penalty for delay by Ferine to fulfill his contract was such as to exclude the idea of lien. (U. S. v. Barney, 3 Hall’s Am. Law Journ. 129.)
    2. The right of the United States to take the vessel, oust Ferine, and finish her, rendered it impossible for the plaintiff to have a lien. He could not sell, for a sale would bring delay, and delay forfeited the vessel. The respondent contracted to finish the engine; that means, not cause her forfeiture.

      Addison Brown, for the respondent, plaintiff.
    I. A contract for building a vessel and for furnishing work and materials therefor, is now conclusively settled not to be a maritime contract, but to be entirely subject to state laws, and to the jurisdiction of the state courts. (People ex rel. Ferry Co. v. Beers, 20 How. U. S. 393. Roach v. Chapman, 22 id. 129. The St. Lawrence, 1 Black, U. S. Rep. 531.
    II. The defendant, Ferine, up to the time of the execution of both of the bonds in suit, was the sole owner of the Triana, and in sole possession of her. Under such .an ex-ecutory contract as that with the navy department, the builder is owner until the vessel be delivered and accepted. (Andrews v. Durant, 1 Kern. 35. Phillips v. Wright, 5 Sandf. 342 359. Law v. Austin, 20 N. Y. Rep. 181.)
    IH. Mr. Ferine being sole owner and in possession of the vessel, and the vessel being entirely subject to our state laws down to the time of the execution of the bonds in suit, Ferine’s executory contract with the government was no obstruction, either to the acquisition or to the enforcement of the plaintiff’s lien. (Briggs v. Light Boat, 7 Allen, 287. Same v. Same, 11 id. 157. The Revenue Cutter No. 1, 21 Law Rep. 281)
    1. Until the United States government became owner, or came into possession of the vessel, there was no possibility of any interference with, or obstruction to, the enforcment of our state laws. .
    2. The only immunity the government enjoys is, (a.) An exemption from direct suit, (b.) Froperty cannot be' taken from its possession, so that it would be compelled to come into court and defend it.

      3. All the cases relied on by the defendant, are cases ■where the property was at the time either in thetpublic service, or in the exclusive possession of the government; neither of which exists in this case. In such cases, the difficulty consists in enforcing the lien after property has come into the government’s possession.
    The whole subject is discussed in an exhaustive opinion In Briggs v. Light Boat, (11 Allen, 248.) By this case, and in the same case in 7 Allen, 287, it is held, that the lien is acquired in the ordinary manner, but that after delivery to the government, its immunity from suit alone prevents the enforcement of the lien.
    4. This immunity from suit is of course confined to the government itself, and cannot be invoked in a suit between private parties, to which the government is a total stranger. If any conflict between our lien and government rights was possible, the defendants might have left us to litigate that matter with the government. By executing the bonds in suit, they removed every possible relation or conflict -between the plaintiff and the government.
    5. Whenever the government comes -into court to claim any rights, or the subject matter in litigation is already in court, the government enjoys no advantage over private parties; its rights are determined by the same -rules as those of other persons. (2 Spence’s Eq. 32, 33, 774. 1 Story on Const. § 1324. 9 Mass. Rep. 368. In re Wilder, 3 Sunn. 308.) In case of forfeiture to the government,-the lien of seamen is good against the government, and will be preserved. (The St. Jago de Cuba, 9 Wheat. 409.) The government must contribute to general average like private persons. (In re Wilder, 3 Sum. 308.)
    6. In the present case, the government had no right to possession until completion or default, and was not, in fact, in possession; the sheriff took possession from- Perine under our warrants, and Perine as owner, regained possession of the vessel from us by giving- the bonds in suit.
    7. The provision of the contract that the government should have a “ lien” for their advances to Ferine does not affect our rights. This contract for a “ lien ” gave no present interest; possession is essential to the existence of a lien, except as given by statute. (Hammonds v. Barclay, 2 East, 235. Lander v. Clark, 1 Hall, 355. Urquart v. McIver, 4 John. 112. McFarland v. Wheeler, 26 Wend. 467.) The provision for a “ lien” rested wholly in contract; to enforce it, the government must come into court, when the rights of all parties would be secured. It is, at most, a mere equitable mortgage. (People, &c. v. Beers, 20 How. U. S. 400.) Even if a valid existing “ lien ” of the government resulted from this contract, it was not exclusive of other liens. One lien is never exclusive of another as against the general owner. The giving of the bonds estops the defendants from all question of priority of liens, of the value of the vessel, or of its sufficiency to satisfy all liens against it. (Franklin v. Pendleton, 3 Sandf. 572.) No authority or even dictum in favor of the defendant’s position can any where be found; all his cases are where the government had exclusive possession.
    8. The act of congress has no bearing on this case. It relates to contracts for “supplies;” the building of this vessel was not “ supplies,” but belonged to a different department of the service, to wit, the construction department. Such acts are strictly construed. The act is clearly disciplinary in intent, enacted, for the purpose of subjecting to summary military discipline, the persons of contractors for supplies for any frauds or irregularities committed by them. It has no relation to the civil rights of other parties. It don’t make the contractor’s property the government’s property, nor his possession, the government’s possession. The question of possession is one of fact. All the evidence shows exclusive possession in Ferine. {See second point.) The contract expressly postpones delivery to the government until completion or default; whatever right the government might have had under any general law, the contract governs this particular case and recognizes no possession in the government, till completion or default.
    IV. The amount of the lien as allowed by the referee, in his report, to wit, $11,914.16, was fully proved by the evidence to have been a debt contracted by Perine, the builder, “for work done and materials furnished toward the building and equipping” of the Triana.

    1. Every dollar was contracted and spent upon this vessel:, and on no other. The evidence offered by the defendant to show that a small portion went into the Maria, was incompetent, and of no force whatever; at all events, if sufficient to raise an issue on the testimony, there is no reason to disturb the referee’s finding on that question of fact.
    . 2. The principle decided in Phillips v. Wright, (5 Sandf. 362,) and kindred cases, was that the words “ furnished' for” the vessel, in the statute, mean not merely designed for but applied towards the building of the vessel; hence, if lumber sold for the vessel were, by the builder, diverted to another purpose, no lien arose in favor of the vendor. This ■ principle has no application to this case.
    3. The defendants’ proposed distinction between the machine “work” and the manual “work” of the plaintiff’s laborers, when the whole was alike “work” furnished towards building and equipping this vessel, is altogether fanciful, and has no support in the words of the statute, in reason or from authority. . The form of the contract with the plaintiff was just, and simply gives the details of the mode of computing the debt contracted, instead of contracting for one gross sum. In the case of the Kearsarge, (Ware, 549,) the “augurs” were disallowed because the whole cost of the augurs themselves was charged; we don’t charge the value of the machines.
    ' 4. Whatever work is done, or articles used or consumed, or expense incurred in and about the work of the vessel, is , a proper lien—all these are elements in arriving at the ultimate cost of building the.vessel. Thus freight, insurance. and cartage of materials, were held to be lienable, as elments of cost. (Kearsarge, Ware, 549.) Use of derricks. (Id.) Paint, brushes, oil, &c. consumed. (Franklin v. Pendleton, 3 Seld. 508.) This principle covers alike freight, cartage, “ small stores ” consumed in doing the work, charges in the work on board the vessel after it is once done, or while doing, and every expense which is an ingredient in the cost of the final completion of the vessel.
    5. The special items which the defendants sought to except as not lienable, are all covered by the plaintiff’s evidence.
   By the Court, Robertson, Ch. J.

Any claim of the United States government on the vessel in question in this case for advances made on account of its price, did not affect whatever. lien the plaintiff had for his claim on her, so far as the bonds in suit are concerned. The defendants are liable on those bonds for any claim of the plaintiff that was a lien on such vessel, whether it could have been enforced against her or not. And even if the United States government had a lien, and it was an obstacle to the enforcement of the plaintiff’s lien, the defendants have waived all objection by executing the bonds in question to procure a discharge of the attachments. (Franklin v. Pendleton, 3 Sandf. 572.) Such lien of the government could be discharged at any time, and the plaintiff be allowed to enforce his. Any claim on the part of the government would be an obstacle, solely by reason of the impossibility of suing the government, which could only be necessary in case the vessel were in the public service or in the exclusive possession of the government. (Briggs v. Light Boat, 7 Allen, 287. S. C. 11 id. 157.) Whenever the government undertakes to recover possession by suit, parties who are on the defensive may use all their rights. (1 Story on Const. § 1324: 2 Spence Eq. 32, 33, 33, 174. In re Wilder, 3 Sum. 308.) The lien of wages, (The Jago de Cuba, 9 Wheat. 409,) and of a claim of general average may, (In re Wilder, ubi sup.) be enforced, against the government. In this case, the government had no right of possession under the contract until completion, or default. The mere covenant for a lien, in the contract, was ineffectual, as all liens, without possession are, when not created by statute. (McFarland v. Wheeler, 26 Wend. 467. Urquart v. McIver, 4 John. 112. Lander v. Clark, 1 Hall, 355. Hammonds v. Barclay, 2 East, 235.) Such a contract for a lien creates only an equitable hypothecation, (People v. Beers, 20 How. U. S. 400.) The act of congress of July, 1862, which puts contractors for supplies under the same military control and discipline as the land and naval forces of the United States, is not applicable to vessels or their appurtenances, so as to put such vessel, or indeed the supplies themselves, under the control of the United States officers. Under such a contract as that in question, there is no transfer of ownership until the vessel is delivered and accepted. (Andrews v. Durant., 11 N. Y. Rep. 35. Phillips v. Wright, 5 Sandf. 342, 359. Law v. Austin, 20 N. Y. Rep. 181.) The contract itself provides for the delivery and acceptance of the vessel, and the right of the government to take possession on default and finish the work, implying that until that time, the possession and ownership continued in the defendant Ferine.

It is fully settled that a contract for building a vessel, or furnishing materials, or doing work therefor, is no more a maritime contract, so far as a lien therefor may be created on such vessel by state laws and enforced by state courts, than building a house or doing any work upon any article for which a lien may attach to the subject of such work. People, &c. v. Beers, 20 How. U. S. 400. Roach v. Chapman, 22 id. 129. The St. Lawrence, 1 Black. U. S. 531.)

The mode of measuring the price of the articles, which entered into the composition of the engine, by charging by the hour for the use of machinery in the plaintiff’s workshop to fit such articles for their place in the engine, was perfectly legitimate. It was not work done on the engine or the vessel, but it was an expenditure for changing raw or rough materials into finished parts of the engine, and entered into their price, as much as if they had been made by any other manufacturer who should estimate their value by including the cost of such work therein. Besides, the statute includes work done “ towards ” the building, &c. as well as upon the vessel or any of its parts or appurtenances. So, also, the making of the moulds and templets or patterns was a necessary expense and labor in order to prepare the castings therefrom, and there was no evidence that they were of any use or value for any other purpose, after being so used for such vessel.

I do not find any evidence that any part of the work or materials allowed for, were for another vessel, (The Maria.) The only witness who enumerated the work done to such other vessel, did not include a man-hole plate in it, which he did in that done for the Triana, which was charged for in the bills rendered. If there was any conflict of testimony it was disposed of by the referee.

The plaintiff was entitled to a lien for the value of every thing necessarily consumed and for every expenditure necessarily incurred, in completing the work performed by him, and is not confined to the mere work done upon parts of the vessel or materials which remain as part of it. (Pendleton v. Franklin, 7 N. Y. Rep. 508. The Kearsarge, Ware, 2d ed. 549, 556.) The use of the preposition “towards” as well as “ for,” in the statute, shows the intention of the .framers to include all materials consumed, as well as those entering into the composition of the vessel or any of its appurtenances.

There are no charges in the accounts rendered, for similar materials or parts, twice furnished. The sheet iron rejected for the conduit or blower channels, was used for man-hole plates. The plaintiff had a right to claim for the same work done twice, if not caused by his fault.

The judgment should be affirmed, with costs."