#### NICHOLSON *v.*MAY AND BARNET.

Lien for repairs — rescue and recaption — presumption and fact — nonsuit—consideration— leave to plead de novo.

The- owner of a schooner placed in the plaintiff’s dock for repair, is a competent witness for the plaintiff in a suit against third persons, to prove the work done for him, and not the defendants.

In a suit for work, if the plaintiff having made a prima facie case, introduce other evidence-showing the fact to be contraiy to the supposed case, and against the plaintiff, he will be nonsuit — no inference can obtain against fact.

When a schooner in dock for repair has been tortiously rescued, the rescuers are liable for the tort.

Where one having a right tore-capture the rescued schooner and re-assert his lien for repairs, forbears to do so on the promise of one interested in the vessel to pay, the forbearance is a good consideration for the promise.

Assumpsit for repairing the schooner Independence.

The plaintiff was admitted with his hooks, and proved his account for repairing the schooner, on which there appeared a balance of $38.2 due.

Witness proved that the Independence was placed in the dock and repaired. Some of the materials were got at the store of the defendants, but after the repair' had progressed, the plaintiff went to the store for spikes, and on his return, said the defendants refused them on account of the vessel, but offered to let the plaintiff have them on credit. The defendants were frequently looking at the work while in progress. When the vessel was completed, she was made fast in the basin by a chain locked inside the shop. In *661the night the chain was broken, and the schooner taken off, but she was seen at anchor some distance in the lake in the morning.

The plaintiff was making arrangements to send for and re-take the vessel, when May requested that she should not be sent for, as she would soon be back and the debt would be safe, and if the plaintiff would not send, and wanted money, he would advance $50, and let his account against the plaintiff lie; that the vessel was in the hands of Barnet, and he would not let her out till the plaintiff was paid. This was agreed to. The schooner some time after returned to port, and the plaintiff seized her, but she was replevied from his possession.

*Capt. Foster's*deposition was offered by the plaintiff.

*S. J. Andrews*

objected, that Foster was owner of the schooner, when placed in the dock to repair, and *interested.*

*Willey,*contra.

*jHitchcock*and *Andrews,*

moved for a nonsuit, because the proof showed the work done for Foster, and not for the defendants.

*Willey,*contra.

By the Court.

If the witness prove the work to have been done for *him,*the interest against the defendants to warrant their objection, does not appear to us. Let it be read.

*Capt. Foster,*testified that he was owner of the Independence, and placed her in the plaintiff’s hands for repair. May and Barnet were trading in partnership, and some of the iron for the repairs came from their store. After the repair had considerably progressed, he sold the vessel to Barnet, and he agreed to save him harmless from her debts. The plaintiff then rested.

By the Court. Nonsuits are ordered when there is a total failure of evidence to sustain the plaintiff’s claim, and where, taking all the evidence, he offers as true, it shows in him no legal right to a verdict. This motion rests on the latter ground.

Before Foster’s deposition was read, there was a proper case for the jury. The proof showed the work done, partly under the care of the defendants, and that they found part of the materials: from this, without explanation, the jury might infer that the defendants were owners, or that the work was done for them. Now, the case stands before us in a very different aspect. That which before was left to be inferred from circumstances, no longer remains so, because the plaintiff has introduced positive proof of the actual state of the facts, which before was left to be *inferred,*and the facts shown are against his rights. No inference can obtain against fact. The truth must govern where disclosed. His frankness in *662introducing the truth against the will of his adversary, is commendable, though it has cut off his present right to recover. In fact, this work was done for Foster, not for the defendants.

But it is claimed that the sale to Barnet, and his promise to pay the debts of the schooner, or keep Foster harmless from them, makes the defendants liable. We think not. The real question is, for whom was this work done? It was done for Foster. Bar-net agreed to pay the debt — does that make the original undertaking with the plaintiff his ? or does it make it the undertaking of himself and May? Clearly not. The plaintiff could not sue on it — though Barnet will'be liable to Foster, if he have to pay.

The promise to pay by May, if for himself and partner, does not give a right to recover in this form of action. The work was not done for them, but for Foster. The plaintiff had a lien upon the vessel. If the defendants rescued her, they are liable for the tort; the tort does not make the original contract theirs. Their promise to pay, in case the plaintiff would forbear to reclaim the vessel, might be a good consideration for a count on that promise, and we think it would be; but here there is only a count for work and labor, which is shown not to have been done at the retainer of the defendant. The motion prevails.

The plaintiff afterwards asked and obtained leave to open up the nonsuit and to declare de novo.