The Bertha

91 F. 272, 1898 U.S. App. LEXIS 1848

• Court: Court of Appeals for the Third Circuit
• Decided: December 5, 1898
• Docket: No. 17
• Status: Published

Opinion

ACHESON, Circuit Judge.

Neither in the answer to the original libel, nor in the cross libel, was the ground taken that the written memorandum did not embody the entire contract between the parties. Therefore, whatever testimony crept into the case, in respect to a supposed prior oral understanding that the libelants (the appellees) were to examine the steam tug Bertha and determine how large a boiler she could properly carry, was irrelevant and inadmissible. No such issue was raised by the pleadings. We have, however, carefully read and considered all the evidence, with a result unfavorable to the appellant. We are well satisfied that the written memorandum sets forth the whole contract. The libelants, we think, assumed no responsibility with respect to the size of the boiler. We are by no means convinced that the boiler was too large for the Bertha, but, if so, her owner (the appellant), who ordered the work, was responsible.

The real defense against the libelants’ bill for material furnished and work done for the Bertha set v. in the answer was that the boiler was placed too high in the tug, and so as to project above the upper deck, whereas it could have been placed lower; that the libelants agreed that the boiler should be placed below the upper deck, and afterwards, before acceptance of the work, “warranted and agreed” that the tug should be “just as good” with her boiler as actually placed as if'it had been below decks. To sustain these allegations the respondents’ proofs were mainly directed. The defense failed of proof. The evidence clearly establishes that the boiler was set as low in the tug as was practicable. The alleged agreement to place the boiler below the upper deck is not satisfactorily shown, nor is the alleged agreement of warranty. No defense to the libelants’ claim appears. The court below was right in its findings and conclusions. The decrees of the district court upon the libel and cross libel are affirmed.