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dence of all other attachments where no such lien exists.” That labor was actually performed by Read in the building of the vessel has been sufficiently proved and is not now denied. The question which has been discussed at the bar is, whether it was performed under such circumstances as entitle him to the benefit of the law. For it is not sufficient that materials be furnished, or labor and service rendered in the construction of a vessel. This must be done by virtue of an agreement; and what sort of an agreement will bring a party within the privilege of the act is the precise question which is involved, and has been learnedly argued in this case. There was no written contract between the parties, and there is no direct proof of the terms of the agreement by which Read was engaged. They are left by the testimony to be inferred from the circumstances under which the engagement was made and the manner in which the contract, whatever it might be, was executed. It appears that about the 16th or 17th of April, Read came to the house of captain Spear, the builder, a stranger and by birth a foreigner, in a state of great destitution, and wished for employment. Spear took him into his house, furnished him with some clothing and employed him a few days for his board. He then left and went to Portland to seek business, but not being successful in obtaining it, he returned and was again employed by Spear; and continued in his service until November, when he was finally discharged. For the first month he was employed exclusively in gardening, planting, laying stone wall, and other labor on the farm. About the beginning of June he went into the smithery and was engaged part of the time at his trade as a blacksmith, in doing the iron work for the vessel. Butman, one of the witnesses, who was also employed as a blacksmith for two months and eight days from the 19th of May, says that during that time he constantly worked with Read, and that about half the time they worked in the shop and about half of the time on the farm, on the highways, in the woods getting timber, and various work. After that period and until Read was finally discharged, his employment was not wholly, but was more exclusively upon the vessel, either in the shop preparing the iron work, or in the yard boring on the ship. While in the smithery, however, he was not wholly occupied in work for the vessel, but occasionally did other jobs which were brought by the neighbors to the shop, but all on Spear's account. The proportion of the time employed upon the vessel is not clearly proved, but is estimated by some of the witnesses at about three fourths of the whole period from the commencement to the close of his employment. It has been already observed that the statute does not create a lien for materials and labor upon the simple and naked fact that they have been actually employed in the building of the vessel; the lien arises only when the materials and labor are furnished by virtue of a previous agreement. The argument of the libellant’s counsel is, that the performance of the labor or the supply of the materials having been proved, and the actual appropriations of them to the finishing of the vessel, it is unnecessary to proceed further and show the agreement in pursuance of which it was done; but the fact that it was done in the execution of a previous contract, results as a presumption of law. To a certain extent this is undoubtedly true. If labor has been performed for another with his knowledge and under his direction, or goods have been furnished, received, and consumed by him, the law will certainly imply from these facts an agreement. But what agreement will be presumed * Why ; on the part of the person who receives the benefit, that he agreed to pay what they were reasonably worth, and ordinarily nothing more. Suppose a man, who is by trade and occupation a ship builder, hires a laborer to work for him a year, but the particular terms of the engagement, except its duration, are not susceptible of proof. The law will imply nothing more than that he should perform such services as are usually required of hired laborers, and after the contract is executed, that the hirer shall pay him a reasonable compensation for such services. Again, suppose such a ship builder to purchase a quantity of lumber suitable for ship building; if the particular terms and conditions of the contract do not appear, the law will imply nothing more on the part of the purchaser ordinarily, than
a promise to pay what it is worth. A contract or agreement requires, as essential to its existence, the assent of two or more minds; duorum vel plurium in idem placitum consensus.' If particular pacts or conditions are annexed to the contract, qualifying its general nature or varying and modifying its general obligations, there must be the same assent of the parties to these conditions to give them validity, as to the substance of the contract. It must be a consent in idem placitum. If the parties have not taken care to express these accessory conditions in the terms of the contract, or what juridically amounts to the same thing, if they cannot be proved, the law will not presume the assent of the parties to them, unless, from the circumstances of the case, or the ordinary course of dealing, these are plainly to be inferred.
- Let us now apply these general and familiar principles of law to the evidence in this case. The fact, that the libellant labored for Spear, and under his direction from April to November, and that he was part of the time employed upon the vessel, is admitted. That the labor was performed by virtue of an agreement, will be inferred as a presumption of law. But the law will infer from the general fact nothing more than a general contract for labor; and what is there in the present case that will authorize the presumption of anything beyond this. Nothing, except what results from the manner in which he was actually employed, and the fact that he was a blacksmith by trade. As to the kind of labor in which he was employed, it appears that for the first month he was exclusively occupied in various work on the farm; for the two following months, about one half of the time on the farm, and one half in the blacksmith's shop ; and during the residue of the term of his service, principally in the shop at his trade in doing the iron work for the vessel, or in the yard working on the ship ; but part of it also, on the farm. Taking then the whole course of his employment, the result will be against this presumption of a special contract with him as a mechanic, for labor on the vessel. Whatever presumption might arise from the fact that he was by trade a blacksmith, is overcome by the various kind of labor in which he was actually employed without any objection on his part. The inference certainly is, that he was hired rather as a sort of jack-at-all-trades, than as a master of one. And this receives confirmation, partially at least, by all the evidence which has been offered touching the rate of wages for which he was engaged. It appears from his own declaration, that Spear would consent to give him but fourteen dollars a month, though he said that he ought to have sixteen. But all the proof is, that the rate of wages for a blacksmith at this time was not less than a dollar a day, about double the rate at which he was to be paid. It appears to me, that the fair conclusion to be drawn from all the facts, is, that this was a general agreement for service as a hired laborer, and not a special contract for any specific kind of labor. Does a person hired as a laborer generally, and employed under that general contract part of the time in work upon the vessel, come within the fair intent and meaning of the legislature, so as to be entitled to a lien on the vessel for his wages during that part of the time that he is so employed. The language of the law is, any persons of the description named in the act, who shall perform labor and furnish materials for or on account of any vessel, by virtue of a written or parol agreement. The labor must be performed, or the materials furnished in pursuance of an agreement, and it must be an agreement to do this for or on account of the vessel to which the lien attaches. The intention of the law is to give to that class of persons, called, in the language of the admiralty, material men, a privilege against the vessel for their security, not universally, and in all cases where their labor or the materials furnished by them have been applied to the building of a vessel, but where this has been done under a contract for or on account of the vessel to the use of which they have been appropriated. The contract must therefore have itself a reference, tacit or express, to the vessel against which the privilege is claimed. It is not intended to be said, that in all cases, a mechanic, who is employed in building a vessel, or a material man, who sells lumber which is used in the construction of it, must, in order to maintain their lien, prove that the vessel was expressly named in the contract. In ordinary cases, or certainly in very many cases, this will be presumed. And these contracts being made while the vessel is in the process of building, and the labor or materials appropriated to her construction, it would require some countervailing circumstances to overcome the natural presumption, that the contracts were made with a view to the particular vessel. I fully agree also with the libellant's counsel, that the lien, being one beneficial to the general interests of commerce, and having its foundation in natural equity, the law ought to receive a liberal construction to carry into full effect the beneficent intentions of the legislature. It belongs to that class of liens, which the law habitually favors. And the act being in fact but a mere recognition or adoption of a principle of the general maritime law, as old as the law itself, a court of admiralty would be the last tribunal to feel any reluctance in giving to it its fullest and most bedeficial operation. But to extend the privilege to a case like the present, would be carrying the lien beyond what seems to me to be the obvious and clear intention of the legislature, and also further than it would be supported by the principles of the general maritime law.
' Dig. 2, 14, 1, 51.