Ames v. Dyer

The plan of a house, the model of a ship, or the mould hy which a ship's timbers are formed, do not enter into the structure, and cannot be regarded as within the statutes by which liens are given, in certain cases, to the material man and the laborer.

On Report from Nisi Prius, Appleton, J., presiding. This was an action of Assumpsit to recover the value of the plaintiffs’ labor in making a set of moulds, by which to construct the ship on which the plaintiffs claim a lien, and for materials used in making such moulds. The plea was the general issue, and a brief statement alleging that the claim of the plaintiffs did not constitute a lien claim. It was admitted that the plaintiffs furnished the lumber to make, and assisted in making, a set of moulds, which were used by the defendants while constructing the ship Oliver Jordan, and that the timber of said ship was shaped by said moulds, which were so used in the yard where the ship was constructed; but they did not enter into the structure of the ship. The defendants contended that the plaintiffs had no lien upon said ship for their demand against defendants. The Court ruled that the plaintiffs had a lien upon the ship for making the moulds, and the materials therefor, and ordered that defendants be defaulted. If, in the opinion of the Court, the plaintiffs have a lien for their claim, the default is to stand. But if this Court are of opinion that they have no lien, the default is to be taken off, and the allegation of a lien claim is to be struck from the writ by amendment, and judgment rendered against the defendants personally only; or such other disposition of the case is to be made as the Court shall judge proper. The plaintiffs claim a lien under the statute of 1842, c. 125, § 25, which provides a lien for labor pérformed or materials furnished “ for or on account of any vessel building or standing on the stocks,” &c. The moulds were furnished “for and on account of” the vessel, and were indispensable to the building of it. Judge Ware, Daveis’ Reports, p. 207, says, “if the excess had been small, and had been furnished under a belief that the whole was wanted, and intended to be used in building the ship, I should think the lien ought to extend to the whole.” The learned Judge would include an “ excess,” that did not actually go into the structure of the vessel. If an excess of timber, not used at all in the ship, may be covered by the lien, how can moulds, actually used and furnished for the ship, be excluded ? The statute gives a lien to those “ who shall perform labor or furnish materials for or on account of any ship.” The plaintiffs’ labor and materials were not “ for or on account of the ship,” but were for the moulds by which the ship was fashioned. It has been held in the Admiralty Courts, that under the lien statute there is no lien, except for materials which enter into the structure of the ship, or for labor in building the ship itself. In the case of Lambard v. Pike, 33 Maine, 141, 144, Shepley, C. J., says, “ To create a lien, the materials must be used for erecting, altering or repairing the building. They must be so applied as to constitute a part of the building.” Judge Ware, in the case of The Hull of a New Ship, Daveis, 199, on p. 208, says, “ The statute privilege extends only to materials which are furnished for the vessel, and actually used in building it.” It has also been held in admiralty, that the statute gives no lien for tools purchased to be used in constructing the ship. Eor some discussion of lien, see Swett fy al.'r. James, 2 R. I., 270, 288, and Phillips v. Wright, 5 Sandf. 342, where it is held that plaintiff has no lien, unless he show the materials went into the structure.