Low v. Austin

The contract between Van Wie and Austin was wholly executory. The former agreed to deliver to the latter, at or before a specified time, a steamboat, finished, furnished and equipped, for which the latter agreed to pay the former a specified price. The boat was delivered under the contract, on the 16th of May, 1854. The contract then became an executed contract. Until then, it was executory, and the title to the boat remained in Van Wie. Had he sold it to another person, or had it been taken on execution against him, Austin would have had no right to interfere. (Andrews v. Durant, 1 Kern. 35.) It follows, that when the plaintiffs in these actions performed their work and furnished their materials towards the building of the boat, under a contract with Van Wie, he was the owner of the boat, and their debts became liens thereon. (2 R. S. 493. See Phillips v. Wright, 5 Sand. 342.)

This is undoubtedly a case of great hardship. The plaintiffs have furnished materials and labor in the construction of the boat, for which their only security seems to be in the lien provided by statute. On the other hand, Austin purchased the boat in good faith and paid the full price, not doubting that he thereby acquired a valid and unincumbered title. The question of hardship seems to be balanced. The whole amount in *29controversy is to be lost by one party or the other. In such a case, all we can do is to declare the law. As I understand it, the plaintiff claims, when Austin received and paid for the boat, there were subsisting, valid incumbrances upon it. He had it in his power to protect himself against these incumbrances, by withholding the price until their liens should cease. He can only blame himself for omitting this precaution. The judgments at the circuit should be reversed, and new trials awarded, with costs to abide the event.

Harris, Watson and Gould, Justices.]