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The first of these alleged "hard landings" took place on her third trip, and she continued on her journey without interruption, and without making more water than she had done before. In point of fact, only one witness in the whole record testifies on that point, or attempts to trace any damaging result to that incident, and no stress is laid on the question on appeal.

The other alleged damaging accident occurred on the down run of her ninth trip, which preceded the last trip which she made before going into dock. On that point the preponderance of the evidence shows that the collision of the boat with the soft, muddy bank of the river was severe, and that it was due to an accident caused by the breaking of a bell wire, in consequence of which the pilot was unable to signal the engineer to back the boat in time to check her headway. But it does not show that the boat was seriously damaged thereby, or that she sprung any dangerous leak in consequence thereof. She was leaking before, she continued to leak after, the collision. Her pumps, to draw up and throw off the water which she was making, had been at work before, and continued after, the accident. Some of the witnesses, who were then employés on the boat, and have since left her service, treat this accident as a very serious and damaging affair, while others treat it very lightly.

The fact that the boat continued on her journey to this city, a distance of 250 miles, with a cargo equal to the weight of 2,500 bales of cotton; that on the next day after her arrival she left on a round trip, which she made successfully with a heavy freight,-speaks louder and more pointedly than the language of witnesses. It shows to our satisfaction that the boat had not been seriously damaged by the accident, and we conclude on this point that neither of the two alleged hard landings affords a rational explanation of the leaky condition of the boat in consequence of which she needed to be recaulked "all over."

It is in proof that when docked, in November, 1885, the boat showed numerous leaks, scattered over the hull generally, and not concentrated in any particular spot; and her seams and butts showed general openings, not confined within any particular parts or portions of the hull. That condition of things shows, in the opinion of experts, that the leaks could not have been occasioned by the collisions in question; for, if that had been the case, those portions of the hull only which had received the strain or injury would have contained open or crooked seams or butts. It is also in proof, without any attempt at contradiction by the defendants, that when docked the boat showed no signs of hard usage. Her bottom was smooth and even, and her seams were natural in appearance, and straight, without a scratch, notch, or a bump; and that condition of the hull is proof, in the opinion of experts, that the boat had not been damaged by bad management or ill-usage. And yet the proof is that she made so much water that recaulking became an urgent necessity. The testimony of all the experts is to the effect that, in the absence of hard usage, or of serious, if not fatal, accidents, the oakum properly applied to the seams of a river steam-boat could not, in the short space of three months, have been knocked out, or (as they term it) "spewed out," of the seams and butts of the boat. Hence, in the face of testimony showing that the oakum was soft and insufficient in quantity in the seams of the hull at the time that the boat was put in dock, the experts uniformly exclaim: "A sufficient quantity of oakum was not put in at the original caulking."

It appears from the record that the defendants did not retain the immediate control over the entire construction and outfit of the boat, but that the contract to build the hull was sublet by them to another firm of boat-builders, and that the contract for the caulking of the hull was given by the latter to four other parties, who make caulking a specialty.

The record contains the testimony of one of the defendants, who was present in court, and that of their superintendent, of the subcontractors of the caulkers, and of their employés and laborers, taken under commissions; and

they all testify with vigorous unanimity that the caulking was done in a workman-like manner, and almost to perfection. The statement is made by several of these witnesses that 2,000 pounds of the best "navy oakum" were actually used, and securely forced into the seams of the boat. Assuming these various statements to be proven facts, the learned district judge holds that plaintiff's witnesses must be mistaken in their testimony, which is to the effect that with 685 pounds of oakum the boat was recaulked all over in the Vallette dry-dock, especially as in the Marine dry-dock, two years later, it took 400 pounds to put one thread of oakum in the seams of her bottom. Hence he concludes that the record utterly fails to show that the original caulking was in any way defective or insufficient. He concedes, however, and in that we agree with him, that the quantity of oakum used is not after all the absolute test of the efficiency of the caulking.

But, be that as it may, we find from that combination of circumstances a consideration which affords to our minds a solution of the problem under discussion. It is either true or not that 2,000 pounds of oakum were used in the caulking at the defendants' ways, and it may be true or not that with 685 pounds of oakum the work claimed by plaintiff's witnesses was done to the boat in November, 1885. Now, it is undeniable that, with the caulking done under defendants' contract, the boat became so leaky as to be dangerous or useless in less than three months' service; and it is in proof that, with the recaulking as done in the Vallette dry-dock, the boat was actually used, in her regular trade, for two years, before she needed any recaulking, and that when she was recaulked she only received 400 pounds of oakum. And the record

shows that, during these two years in which she made no water, she was under the control of the same management (be it good or bad) which had run her from September to November, 1885, and to whose "inexperience and recklessness" defendants attribute all the calamities which had befallen the boat during her incipient career.

In the detailed bill of the Vallette dock, plaintiff is charged with only 685 pounds of oakum, and it is absolutely safe to conclude that a greater quantity was not used. As the caulking originally done was included in the cost price of the boat, no detailed charge is made for the oakum therein used; but, if the quantity used by Vallette was sufficient to restore the boat to a perfectly dry and tight condition from the admittedly leaky and dangerous condition in which she entered the dock on November 14, 1885, and as it proved that the caulking thus done lasted for two years' service under the same management, the conclusion is irresistible that the original caulking, which lasted only three months, must have been defective, either because it has been improperly done, or because a sufficient quantity of oakum was not used in the work. For the purposes of the case it is perhaps unnecessary for us to announce which of those two conclusions was forced on our minds by the record. But, under our finding that the expenses of the recaulking were necessitated by the defective original caulking, the requirements of the law and the ends of justice apply the legal consequence flowing therefrom, and that is the liability of defendants under their contract to reimburse the expenditure thus incurred by plaintiff. Hence he must recover judgment for the sum of $1,930.77, which is the amount of the detailed bill of the dock company for that work, and over which there is no dispute beyond the point which we here just discussed.

2. Our review of the case has led us to the conclusion that plaintiff's complaint about the wheel is also sustained by the preponderance of the evidence. The written contract was silent as to the dimensions and other details concerning the wheel. It was subsequently agreed between the parties that the wheel was to be of a diameter of 23 feet, but a discussion arose as to the proper height of hanging the wheel so as to regulate the sweep thereof in the water. Both parties agreed that the wheel should have a dip of three inches above the level of the bottom of the boat. But, from the plans and drawings submitted

to Capt. Leathers by the builders, it appeared to him, from the location of the cylinder timbers, that the proper dimensions were not given to obtain the desired result, and that as located in the plan the wheel would be lower than the bottom of the boat; that, therefore, it would be too deep in the water; and that in consequence the wheel would drive the boat with a force not commensurate with the power of the engine, or with the general build, frame, and strength of the boat. Those objections were urged here, and also at the defendants' ways, on both occasions when plaintiff visited them, and saw the boat in progress of construction. And owing, doubtless, to the subsequent illness of Capt. Leathers, which lasted until the month of September following, the point of contention, as above stated, was never definitely settled between the parties.

From the testimony of J. M. Sweeney, one of the defendants in the case, it appears that he considered the point as settled, in accordance with his views, as detailed in the plans and drawings. He refers to a steam-boat constructed in a similar manner, on which he took a trip with Capt. Leathers, making full explanations on the subject, after which the latter yielded his consent to the mode suggested by the builders. But in this conclusion Mr. Sweeney made an honest mistake, as it appears conclusively from other parts of the record that the idea was never finally accepted by Capt. Leathers.

Being too unwell to attend to the business, he sent a trusted agent, a skilled engineer, to Wheeling, with the special mission of superintending the machinery for the new boat. After making necessary measurements, that en gineer discovered the identical discrepancy which had hitherto concerned Capt. Leathers, as to the height at which the wheel should be set; and be accordingly protested against the course which defendants had adopted on the subject-matter. As his objections were not heeded, he telegraphed to Capt. Leathers, conveying the facts in the premises, and submitting his opinion; whereupon a letter was written to the defendants, by the commercial agents of Leathers in this city, communicating the instructions and wishes of the latter on the subject. Nevertheless the wheel was set in accordance with the plans of the defendants. It is also in proof, through the testimony of Sweeney himself, that, on the occasion of Leathers' inspection of the boat at the wharf in this city, the latter had made the remark that "he would give five hundred dollars if that wheel was higher, but he supposed it was all right.”

We therefore conclude that the evidence is not sufficient to commit Leathers to the mode adopted by the defendants in hanging the wheel, and that they followed their own idea in the premises, at their own risk.

Now, from the testimony of numerous experts, who saw and inspected the boat in the Vallette dock, it is shown beyond the peradventure of a doubt that the wheel was then from 7 to 10 inches below the bottom level of the boat, and that this was a mistake of construction. The wheel was then raised 11 or 12 inches by means of proper appliances, and that operation gave to it the proper sweep or dip, which is three inches above the level of the bottom of the boat.

The propriety and the necessity of the change thus made were verified by subsequent events. On inspection of the boat, when she was docked two years later, it was found by the experts that the wheel was yet properly hanging. That circumstance affords an answer to the argument made by defendants, that the fact of the wheel hanging too low in November, 1885, was due to the "hogging" of the boat by the bending down of its stern. After two years' service, the wheel was found at the proper height or thereabout, although the stern did then appear to have dropped down a few inches. Conceding that the stern had dropped at the time that she was docked, in November, 1885, a fact which is advanced by a few witnesses, and denied by more, and by the most competent experts, it is not even contended that it had dropped one foot; and that much was necessary to produce the result shown by the

examination made at that time. It is conceded on all sides that the boat had been primarily very efficiently chained, with the best known appliances, and that the hog-chain showed no signs of having given way.

Defendants could not have contended, without involving themselves in a damaging admission of a defective construction of the boat, that her stern had dropped lower in three months than it did subsequently in two years.

The record shows that the boat was taken down the Ohio river during a low stage of water; that she was grounded once for more than 30 hours; and that she several times rubbed or scraped the bottom of the river, for want of sufficient water to properly float her. From that circumstance it is argued by defendants' counsel that the wheel could not have been lower than the bottom of the boat, as in that case it would have been broken off. To that effect is the testimony of several experts. But by the testimony of one of the pilots, who had charge of the boat from Cincinnati to New Orleans, and who was a witness for defendants, it appears that, as often as the boat scraped the ground, the wheel was imbedded in the ground, and that on such occasions, in his own language, "the wheel walked the bottom." But the wheel was not torn off or injured, and that fact, although incompatible with the opinion of experts examined on behalf of the defendants, is satisfactorily explained by the following significant circumstance:

The defendant J. M. Sweeney states that, after passing Louisville, Ky., he caused the buckets of the wheel to be shifted several inches, by raising them on the arms, and thus the buckets of the wheel did not come in contact with the ground when the boat scraped the bottom; the arms alone struck the ground, which yielded to the pressure of the same, which are strong upright beams or pieces of best timber, and thus the wheel was enabled to "walk the bottom" without injury. In that connection, Mr. Sweeney states that, unless the buckets had been thus shifted, the wheel would have driven the boat with too much force. That was precisely the ground of plaintiff's objection to defendants' manner of setting the wheel, and that is precisely the theory which necessitated the change made under plaintiff's directions, and under which defendants must be held liable for an honest, but unfortunate, mistake of construction. The cost of that necessary improvement was $330, and plaintiff is entitled to the recovery thereof in this suit.

But he is not entitled to recover any compensation from these defendants for the earnings which the boat could have made while she was in dock. The record shows that plaintiff there owned another steamer, which was forth with. put in the trade in the place of the T. P. Leathers, the name of the new boat; hence his business did not suffer by that incident. The chances of his trade were not materially affected by the change from the Leathers to the Natchez. Instead of keeping the Natchez laid up, he simply laid up the Leathers for two weeks, and the business was carried on all the same. In concluding to hold the defendants liable for the two errors in construction which we have labored to describe herein, we are not to be understood as casting the least reflection on either their good faith or their competency as boat-builders, for we leave the record with the absolute conviction that they are not wanting in either. As to the deficient caulking, they were deceived themselves by subcontractors, and, as to the defect touching the wheel, it was the result of a mistake.

Under the views which we have taken of the case, it is unnecessary to consider the reconventional demand, which falls under its own weight.

It is therefore ordered that the judgment appealed from be annulled, avoided. and reversed; and it is now ordered, adjudged, and decreed that plaintiff do have and recover judgment against the defendants in the sum of $2,261.14, and that defendants' demand in reconvention be rejected. It is further ordered that plaintiff recover all costs incurred in both courts. Rehearing refused.

Succession of BUISSIÈRE.

(Supreme Court of Louisiana. February 11, 1889.)

1. MARRIAGE-VALIDITY-CONTRAVENTION OF PROHIBITORY LAW-GOOD FAITH. However true it be that what is done in contravention of a prohibitory law is null, and is barren of effect, the law creates an exception, in cases of marriages contracted in good faith, in favor of both spouses, or of one of them and of the issue born of such marriages.1

2. SAME EVIDENCE OF GOOD FAITH-ERROR OF LAW.

An error of law, as well as an error of fact, may be pleaded and established to prove such good faith, and may secure protection.1

8. SAME MARRIAGE WITHIN PROHIBITORY DEGREE-LEGAL EFFECT.

Although a marriage between uncle and niece may have been a nullity, as contracted in violation of a prohibitory law, yet it will produce legal effects as to one of the spouses and the issue of the marriage, when such spouse acted in good faith.1

4 WILLS-NATURE OF ESTATE-FIDEI COMMISSUM.

Testamentary dispositions by which the testator bequeaths the usufruct of part of his property to one person, wishing it to continue in others after the death of such person, and gives the naked ownership of such part and the full ownership of the remainder of his estate to another, do not constitute a case in which the legetees are charged to preserve for, or to return a thing to, a third person, and do not contain a prohibited substitution and fidei commissum. (Syllabus by the Court.)

Appeal from civil district court, parish of Orleans; FRED D. KING, Judge. On petition of Josephine Ferrand and others to annul the will of Romain Buissière.

Gus. A. Breaux and James Legendre, for appellant. Frank D. Chretien and F. L. Richardson, for appellee.

BERMUDEZ, C. J. Romain Buissière, a Frenchman, died in 1887, leaving a will by which he bequeathed the usufruct of part of his estate to his wife, and instituted their daughter his universal legatee. He left three sisters and a brother. Two of the former, joined by the latter, bring this action to annul the will of the deceased, on the ground of the nullity of his marriage, and the consequent illegitimacy of its offspring, and also because the will contains a prohibited substitution and fidei commissum.

1. The marriage is charged with nullity, as having been contracted between uncle and niece, in violation of the prohibitory law of both the place of their domicile and that of the celebration. The surviving wife, individually and as tutrix, is made defendant, and the sister, who did not join, is made a party. The wife contends that her marriage was contracted in good faith, stating the circumstances under which it took place, and that it must produce its civil effects in her favor and in that of her child. The sister admits the validity of the marriage and of the will. From a judgment in favor of plaintiffs this appeal is taken.

The record discloses the following facts: Romain Buissière was a Frenchman. His sister and her husband, Mangournet, and their daughter, Lucie Adèle, were also French citizens. Romain Buissière settled years ago in Louisiana, and in 1881 returned home from a trip to France, bringing over with him his niece, Lucie Adèle, and on his arrival here placed her in a convent to receive a suitable education. After she had left the institution, he conceived the idea of marrying her. The father and mother of the girl, who were in France, were written to, and arrived here to consider and determine

'Under the laws of Louisiana, the only condition on which a null marriage can produce civil effects is that it was contracted in good faith by the parties, or by at least one of them. In the latter case, the civil effects can benefit only that spouse who acted in good faith, and the issue. Succession of Taylor, (La.) 2 South Rep. 581.

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