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THE TIETJEN & LANG NO. 2

January 13, 1944

THE TIETJEN & LANG NO. 2


The opinion of the court was delivered by: MEANEY

This is an action in admiralty, brought to recover possession of the derrick lighter Tietjen & Lang No. 2, and certain other maritime equipment.

On July 16, 1942, the lighter and equipment were owned by the libellant, Lulu R. Miller, and chartered to one George E. Huntley, who held libellant's power of attorney to negotiate and close a sale of the property. On that day, while the lighter itself was in the respondent Swenson's drydock, whither it had been towed by respondent, and the other equipment was in North Bergen, New Jersey, Mr. Huntley, in response to a telegram, went to the office of the respondents in Jersey City. Huntley was peculiarly incapable of competently entering into any business transaction, being unfortunate enough to be unable to read either the contract of sale which he subsequently signed or the checks which were given to him in return for his signature. Doubtless because of this infirmity, Walter Swenson, who transacted all the respondents business, read orally to Mr. Huntley the terms of a contract of sale which he wished Huntley to sign. Huntley refused to so sign, however, declaring that the contract referred to equipment which he had never heard of. He avers, and the respondent Walter Swenson denies, that he suggested the desirability of having the libellant's attorney present when the contract was signed, and that the respondent refused to accede to this request. At any rate, Huntley left the office, and, while sitting on the pier in order to relieve an attack of pain which he had suffered, was accosted by a representative of Swenson and brought back to the office; there a contract of sale was again read to him, though whether the contract so read was the same one previously read to him or not is a matter in dispute, and this time he affixed his signature to it. The contract provided that $3,500 would be paid to the libellant in return for the lighter and equipment, as follows: "$2,500 cash on delivery of the derrick on dry dock"; the remaining $1,000 was to be retained by respondents as security for certain wharfage charges and the like. When Huntley signed the contract Swenson gave him two checks, one a check of John Swenson Dry Docks for $1,500, signed by John Walter Swenson, and one a check for $1,000, both made payable to "Derrick Lang No. 2 Merchandise and Owners". Huntley sealed the two checks, his copy of the contract, and his power of attorney in an envelope, and entrusted it to Swenson for safe-keeping. Returning the following day, he found that Swenson had opened the envelope and removed the power of attorney, which he refused to give up. Before giving the checks to Huntley, Swenson made the latter sign a receipt, as follows: "Received from U. & S. Salvage Company and/or John Walter Swenson, by checks, as follows: on account of purchase of Derrick Lang No. 2, merchandise and owners -- from Lulu R. Miller and George E. Huntley, et al as follows:" A description of the two checks followed.

 Timely efforts by Huntley to cash the checks (at which time he for the first time discovered the manner in which they were executed) failed of their purpose, for no bank would undertake to honor such vague instruments. The libellant herself then made timely efforts to deposit the checks in her account, but these efforts were foredoomed to failure for the same reason. Swenson has testified that subsequently, and not later than July 31, 1942, he stopped payment on the checks, allegedly because of the pendency of an action in the Chancery Court of New Jersey regarding ownership of the lighter in question.

 The respondents in their trial memorandum, urge three main points, as follows:

 (1) This court is without jurisdiction.

 (2) Libellant has no title or right of possession to the chattels in question.

 (3) Laches is a bar to the relief sought by libellant.

 The first contention of the respondents is without merit. This is not, as they maintain, an action on a contract, maritime, or otherwise. It is a possessory action to recover the physical possession of a ship and other maritime equipment to which the libellant is by right entitled and of which she is being tortiously deprived.

 The underlying principle is stated simply in Benedict on Admiralty, volume 1, chapter X, s/s 73 (pages 153, 154): "The admiralty has also jurisdiction of possessory and petitory suits * * *. Possessory actions are actions to recover ships or other property to which a party is of right entitled. They are analogous to the action of replevin or detinue at the common law, in which the specific property is recovered instead of damages. These actions are brought by owners to try the right to possession of a ship, by masters, seamen, or lienors to recover possession. Possessory suits may be brought in all cases to reinstate the owners of ships who have been wrongfully deprived of their property. (Emphasis mine.)

 Clearly, the present action falls into the category of a possessory action, over which this court has admiralty jurisdiction. It is not in any sense an action on a contract, but rather an attempt to regain possession of a boat and equipment to which libellant has the legal title.

 The second contention of the respondents is unmeritorious. Under the terms of the contract of sale, $2,500 in cash was to be paid by the respondents upon delivery of the derrick on dry dock. In effect, this meant that $2,500 in cash was immediately due and payable, for the derrick was at that time in Swenson's possession. Referring to this cash provision of the contract, respondents in their trial brief state that: "Even if it were contended that the payment of the sum of $2500.00 at the time of delivery was a condition to the transfer of title, under the facts in the instant case such condition was waived."

 Respondents then quote from Williston on Sales (2d edition) par. 346, pp. 816, 817, 820, as follows:

 "If the condition protecting seller has been waived by him, as of course it may be, the buyer's title becomes absolute * * * It is universally admitted in the decisions that delivery is at least evidence of a waiver, and if the buyer is allowed to retain the goods for a ...


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