Thomas v. Knowles

128 Mass. 22, 1879 Mass. LEXIS 160

Opinion

Gray, C. J.

The stipulation, in the contract of sale of the vessel from the defendant to the plaintiff, that the defendant should, at the end of the voyage, “take her back” and “have her ” at a certain price, clearly contemplated that the plaintiff, when the voyage was ended, should deliver or tender a bill of sale of the vessel to the defendant. It being agreed that, at the time when the plaintiff tendered a bill of sale, the vessel had become a wreck, abandoned and sunk in the ocean, the plaintiff fails to show that she existed at that time in the character of a ship, as the contract required, and therefore cannot maintain this action. Barr v. Gibson, 3 M. & W. 390, 400. Wells v. Calnan, 107 Mass. 514. Judgment affirmed.