By a written agreement made between the parties, this case is submitted to the decision of the Court upon the testimony reported in the case of Horace Hatch against the same defendants, and upon an admission that the materials and work “ were delivered for the vessel’s top work after the three thousand dollars were paid by the defendants.” By defendants the parties doubtless meant Taylor and Brown, for they were to make the payment to the other defendants, Shuman and Cox, who were to receive it, and who had suffered a default to be entered.
The plaintiff having testified as a witness in the case of Hatch v. Taylor et als., that testimony by the agreement becomes evidence in his own case. He states, that he made his charges to the vessel and owners, and “did it (the work) on that credit,” and that it was not performed at the request of Taylor or Brown. They first became connected with the vessel by a contract made with the other defendants on October 19, 1848. The meaning of the parties is to be ascertained from an examination of the whole instrument, and if one part of it be found at variance with another, it must receive such a construction that the whole may operate harmoniousty together.
It was an executory contract, providing for a future purchase and sale of one third part of the vessel, and not a contract, by which that part was then purchased and sold, either absolutely or conditionally, or in mortgage, Taylor and Brown were to *32pay the three thousand dollars when the vessel had been launched five days, and was clear of all lien claims. If those events should never happen, they would not be obliged to pay. The vessel before then might have been conveyed to others by Shuman and Cox, or have been attached and held as their property. If she had been lost by fire or otherwise, the loss must have been borne by them. If Taylor and Brown should fail to pay, they were under no obligation to convey to them. No part of the vessel could have been attached and held as the property of Taylor or Brown. Neither of- them could have conveyed any part; nor had either any insurable interest in her.
A different construction might have subjected Shuman and Cox to a loss of one-third of the vessel, if Taylor and Brown had proved to be unable to pay : and might have subjected Taylor and Brown to a like loss, if the vessel had been wholly appropriated to the satisfaction of lien claims and they had been compelled to pay the three thousand dollars. The acknowledgment of one dollar received as a consideration is perceived to be no more than a formal declaration to make the contract valid. Although the language used is “ have granted, bargained and sold,” it cannot, consistently with the clear intention of the parties and with other language used by them, be considered as having any other meaning than an agreement to do so. The effect of the contract is an agreement to purchase and to sell and convey at a future time and upon the happening of future events. Upon such future sale being completed, certain other rights were secured by the contract to each party. It was not to become functus officio and null upon such sale and purchase of the property. It would continue to be valid to secure to Brown the right to command the vessel, and to Taylor the right to be her ship’s husband for six months ; and to secure to Shuman and Cox the right to require an account of her earnings and a right to regain the title by repayment of the price within the six months.
Upon payment of the three thousand dollars according to the contract after the vessel had been launched and had re*33mained five days free from lien .claims, one-third part of the Vessel became the property of Taylor and Brown. By the payment and reception of the money, both parties admitted that there had been a compliance with the terms of the contract ; and the sale was then completed, although no bill of sale was then made as the contract required. The payment and acceptance of the price of a vessel is sufficient to complete the sale between the seller and purchaser, without any bill of sale or other written instrument, Ludwig v. Fuller, 17 Maine, 162; Lyman v. Redman, 23 Maine, 289. Although the plaintiffs in the case of Pearce v. Norton, 1 Fair. 252, recovered for the value of the vessel, they were considered as holding the legal title by way of mortgage. The fact that Cox, on December 8, 1848, to obtain an enrollment of the vessel, made oath that he and Shuman were the sole owners, cannot alter the legal rights of the parties. It only proves that he was in error.
It is insisted that if they then became owners, they were mortgagees, not in possession in the character of mortgagees. No debt was due to them from Shuman and Cox, who were “ at liberty to pay back the said sum of three thousand dollars,” but were under no obligations to do so. The money was not loaned but paid for the purchase of property. Taylor and Brown could not therefore be regarded as mortgagees. The sale to them was conditional, liable to be defeated by performance of a condition subsequent. Thus holding the title of one-third of the vessel, they were liable as part owners for materials found and labor performed upon her after that •timeand are therefore liable to pay the plaintiff.
Defendants defaulted.
Wells, Howard, Rice and Hathaway, J. J., concurred.