Warehouse & Builders Supply Co. vs. Galvin and others.

mond, 42 Cal. 227; Home Ins. Co. v. N. W. P. Co. 32 Iowa, 223; Baird v. Daly, 57 N. Y. 237; Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U. S. 99; Dougan v. Champlain Transp. Co. 56 N. Y. 1; Stewart v. Ilarry, 3 Bush, 438; Percival v. Hickey, 18 Johns. 257; Chisholm v. Northern Transp. Co. 61 Barb. 363; Daily v. Doe, 3 Fed. Rep. 903.

CASSODAY, C. J. It is claimed that the trial court had no jurisdiction of the subject matter of the action. This is put upon the ground that such jurisdiction is vested exclusively in the federal courts of admiralty and maritime jurisdiction. Sec. 2, art. III, Const. of U. S.; subd. 8, sec. 563, R. S. of U. S. In support of such contention counsel rely upon cases holding that upon an ordinary contract of affreightment the lien of the shipper is a maritime lien; and a proceeding in rem to enforce it is within the exclusive original cognizance of the district courts of the United States. The Belfast, 7 Wall. 624. But the statute giving to federal courts such exclusive jurisdiction "of all causes of admiralty and maritime jurisdiction," expressly saves "to suitors in all cases the right of a common-law remedy where the common law is competent to give it." Sec. 563, supra. The same clauses are contained in the section of the federal statutes expressly making the jurisdiction vested in the federal courts in certain cases "exclusive of the courts of the several states." Subd. 3, scc. 711, R. S. of U. S. "The distinguishing and characteristic feature" of a suit in admiralty, to use the language of Mr. Justice FIELD, "is that the vessel or thing proceeded against is itself seized and impleaded as a defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself which gives to the title made under its decree validity against all the world. By the common-law process, whether of mesne attachment or execution, property is reached only through a personal

Warehouse & Builders Supply Co. vs. Galvin and others.

defendant, and then only to the extent of his title. Under a sale, therefore, upon a judgment in a common-law proceeding, the title acquired can never be better than that possessed by the personal defendant. It is his title, and not the property itself, which is sold." The Moses Taylor, 4

Wall. 427.

This is certainly not a suit in admiralty. On the contrary, it is an ordinary action of replevin, brought by the owner and consignee of the goods shipped against the owners of the boat transporting the same, and those claiming under them, to recover possession of the goods shipped. It is one of the common-law remedies saved to suitors, so far as the common law is competent to give such remedy. The court, therefore, had jurisdiction of the action, and could retain the same, so far as to determine the questions within its rightful jurisdiction.

The defendants, as common carriers, had a particular and specific lien at common law upon the goods so carried for their freight in carrying the same. 1 Jones, Liens, §§ 262, 263. The same author says: "Carriers by water have a lien as well as carriers by land. A shipowner has a lien for freight upon the goods carried, whether the vessels be chartered or be general ships carrying goods for all persons for hire. The master is not bound to deliver possession of any part of his cargo until the freight and other charges due in respect to such part are paid. This lien may be regarded as a maritime lien, because it is cognizable in the admiralty, and under the usages of commerce arises independently of the agreement of the parties. The shipowner may retain the goods until the freight is paid, or he may enforce it by a proceeding in rem in the admiralty court; but, although the lien is maritime and cognizable in the admiralty, it stands upon the same ground with the common-law lien of the carrier on land, is subject to the same principles, except as regards enforcement, and may, therefore, be considered

Warehouse & Builders Supply Co. vs. Galvin and others.

in connection with the liens of carriers by land." Id. §§ 270, 271. See, also, Hutchinson, Carriers, § 476-479. The court, therefore, had jurisdiction to determine the amount of such lien for carriage at common law, and whether the amount of freight tendered by the plaintiff was sufficient to discharge the same.

True, the statutes of this state provide, among other things, in effect, that every ship, boat, or vessel used in navigating the waters of this state shall be liable to a lien thereon (3) for all demands or damages accruing from the nonperformance or malperformance of any contract of affreightment, or any contract touching the transportation of property entered into by the master, agent, owner, or consignee of the ship, boat, or vessel on which such contract is to be performed; such lien "to be enforced by proceedings in admiralty," or in the cases therein mentioned as therein prescribed, that is to say, by attachment. Secs. 3348, 3351, S. & B. Ann. Stats. But the plaintiff is not here seeking to enforce any such lien against the boat, and hence the statutes give no support to this action.

The question recurs whether the owners of the vessel, and those acting under them, had the right to retain the possession of the 818 barrels of salt so carried until such owners had been paid, not only ten cents a barrel for each of the 818 barrels so carried, but also ten cents a barrel for each of the 4,182 barrels which the plaintiff failed to furnish for carriage as agreed. We are constrained to hold that the contract to carry the 5,000 barrels of salt at ten cents a barrel, was, in legal effect, an entire contract to carry the 5,000 barrels for $500. In other words, the contract was not divisible. This principle has often been applied by this court to a contract to work for a year, or some other definite time, at so much per month. Jennings v. Lyons, 39 Wis. 553; Diefenback v. Stark, 56 Wis. 462; Koplitz v. Powell, 56 Wis. 671. The reasons for the rule are sufliciently stated in these cases.

VOL. 96-34

Warehouse & Builders Supply Co. vs. Galvin and others.

The principles upon which the rule is based are peculiarly applicable to a contract of affreightment, since the amount of the goods shipped is necessarily an inducement or consideration for making the contract. Such being the nature of the contract, it is manifest that the tender of freight by the plaintiff was insufficient, and hence that the plaintiff is not entitled to recover the possession of the salt in this action.

But, even if we were to take a different view of the contract, still we are inclined to hold that the plaintiff could not recover in this action. In this country it is firmly established in admiralty law that the vessel and the cargo have reciprocal rights against each other, and reciprocal liens to enforce the rights of each against the other. Parsons, Shipping & Adm. 171. Upon this principle it has been held by federal courts in this country, in effect, that, where a shipper fails to furnish or to deliver to the vessel the full amount of goods which he had contracted to furnish or deliver, the lien of the vessel upon the goods so furnished or delivered would be enforced in admiralty, whether the action be treated as one to recover freight or to recover damages for the nonperformance of a contract. In re Nine Hundred and Forty-eight Pieces of Lumber, 7 Ben. 389; Fox v. Holt, 4 Ben. 278; The Eliza's Cargo, 1 Lowell, 83; Clarke v. Crabtree, 2 Curt. 87; The B. J. Willard, 8 Weekly Notes Cas. 47; Giles v. The Cynthia, 1 Pet. Adm. 203, and note; Watts v. Camors, 115 U. S. 353; The Gazelle and Cargo, 128 U. S. 474. This principle includes demurrage. This lien of the vessel upon the cargo justified the owners of the vessel, and those acting under them, in retaining possession of the goods actually carried until such lien was satisfied or legally discharged; and it was incompetent for the state court to prevent the vessel from enforcing such lien in admiralty, or to deprive the owners of the vessel of such possession so long as such lien continued. Stewart v. Potomac Ferry Co. 12 Fed. Rep. 296. Counsel for the plaintiff has cited English

Dishneau vs. Newton and others.

cases holding a different rule, but we feel bound by the decisions of our federal courts in admiralty cases.

By the Court. The judgment of the superior court of Douglas county is reversed, and the cause is remanded with direction to dismiss the complaint.

DISHNEAU, Respondent, vs. NEWTON and others, Appellants.

May 25-June 11, 1897.

Conversion: Attachment: Redelivery: Agency.

In an action for the conversion of plaintiff's horses by a sheriff who had attached them as the property of her husband, it appeared conclusively that for a long time prior to the attachment the horses had been under the complete and exclusive control of the husband; that upon the release of the attachment the sheriff delivered the horses to third persons in pursuance of a contract of sale entered into with them by the husband as plaintiff's agent; and that the release was procured by attorneys in the employ of the husband. Held, that the horses had been in legal effect redelivered to the husband, even though the contract of sale was not binding upon plaintiff.

APPEAL from a judgment of the superior court of Douglas County: CHAS. SMITH, Judge. Reversed.

This is an action to recover damages for the conversion of six horses. The action was brought against the sureties upon the official bond of one Dan Kennedy, now deceased, who was the sheriff of Douglas county from January, 1891, to January, 1893. The alleged conversion took place in November, 1892, at the city of Superior. At that time the plaintiff was a married woman, living in Michigan. Her husband, Edward Dishneau, was, in company with one Thompson, engaged in business as a railroad contractor, and the firm was working upon a contract at or near Iron River, in this