We adopt the doctrine of Andrews v. Durant, 11 N. Y., 35, and Low v. Austin, 20 N. Y., 181, in opposition to the modern English rule, and hold, in the absence of any specific and clear agreement to the contrary, that under a contract for the building of a vessel, no property vests in the person for whom it is agreed to be built, until it is finished and delivered. In this case there .was no special agreement by which the title was to vest in French and Miller, the parties for *250wbom the vessel was built, before it was completed and delivered. It was but the ordinary contract for the building of a vessel, with stipulation for advancements to be made to the builder from time to time as the work progressed. No property vested in French and Miller until the vessel was completed and delivered. It follows, therefore, that the title remained in Boole, the builder, and that he was the owner at the time he contracted for the articles furnished by the plaintiffs and used in its construction. It follows also that, as owner, Boole was authorized to purchase, and, under the statute, to charge the vessel with a lien for the price of the articles furnished. Thus far, under the view we have taken of the law, the case presents no difficulty. The plaintiffs are clearly entitled to recover. But a question arises as to the sufficiency of the complaint.
The complaint avers that Boole was agerú of the vessel, and as such was authorized to purchase and did purchase and use the articles for which the lien is claimed. French and Miller, answering for the vessel as the present owners and the parties for whom she was built, deny that Boole was such agent, or that he had any authority whatever to contract the debt or incur the liability stated in the complaint. And for a further defense, they aver “ that the said vesselwas built by said Boole for them under a contract to furnish all the labor and materials used in her construction for an agreed ¡erice, the whole to be paid when said vessel was completed and delivered; that when it was completed and delivered, they paid to said Boole, the contractor, the whole sum agreed upon and more, without notice or suspicion of this claim or any claim for materials furnished in her construction; wherefore they demand judgment,” &c.
It is urged that the plaintiffs cannot succeed upon the grounds stated in the complaint, the issue upon Boole’s agency being found against them, and that the judgment must be reversed and the cause remanded for a new trial upon a complaint to be *251amended according to the real facts. This appears to me to be unnecessary. I thinlc the erroneous statements of the complaint are cured by the averments of the answer, and the proofs given under it, and that to reverse the judgment and direct a new trial upon an amended complaint would be to put the parties to delay and expense not required by the ends of justice. It is immaterial to the plaintiff's right of action whether Boole was agent or owner. In either case they are entitled to judgment. They aver that he was agent. French and Miller say he was not, but that he was owner; or, what is the same thing, they aver facts which in law show that he was owner. Thus, it seems to me, the plaintiffs are relieved from the difficulty; and it is in legal effect the same as if they themselves had averred that Boole was owner, and had proved it. Had the jury found a verdict in form that Boole was not agent, the plaintiffs would still have been entitled to judgment. They would have been entitled to it notwithstanding the verdict, the merits being still wholly in their favor upon the facts stated in the answer. In such a case I believe the rule to be not to award a repleader, but to give judgment for the party thus entitled to it. 1 Chitty’s PL, 656, 657.
It is suggested that had the plaintiffs done just what French and Miller have done, averred ownership or facts showing ownership in Boole, French and Miller might then have made some different answer; they might have set up a special agreement by which the title was to vest in them pari passu, as the work progressed and the advancements were made; and therefore a repleader should be awarded. This seems to me to be going to too great length. No inference of the existence of any such special agreement can be drawn from the case as it now appears. On the the contrary, the almost conclusive inference from the facts stated in the answer and proved at the trial is, that there was no such special agreement. 'Without its being shown, therefore, by affidavit or otherwise, that there was such an agreement, and that French and Miller were misled by the *252erroneous statements of tie complaint, I am of opinion that no repleader should be awarded, and that the judgment of the circuit court should be affirmed.
By the Court. — Judgment affirmed.