Steffany; Scanlan v.

HERBERT J. SCANLAN and JOSEPH V. LANGKILDE,

Merchants; BERNARD K. TRASK, Intervener as a party defendant;

Appellants (Defendants)

 

v.

 

ALO PEPE STEFF ANY of Fagasa, et al., Appellees (Plaintiffs)

 

High Court of American Samoa

Civil Jurisdiction, Appellate Division

 

No. 52-1961

 

December 4, 1961

 

__________



      Appeal from money judgment rendered by Trial Division of the High Court against appellant-lessees of vessel. Appellants moved to disqualify Chief Justice on grounds that he had sat as trial judge and contended that decision should be reversed on grounds that lease agreement was invalid without signature of one of co-owners. Appellate Division of the High Court, Chief Justice Morrow, affirmed decision of Trial Court, holding that under law he was qualified to sit as appellate judge and that lease agreement was valid and defendant liable to pay rents thereunder.

              Judgment affirmed.

 

1. Judges-Temporary Chief Justice

              Governor is authorized to appoint temporary Chief Justice in case of disability, disqualification or absence of Chief Justice. (CAS 168.)

 

2. Appeal and Error-Trial Judge as Appellate Judge

              Since Chief Justice is required to sit in hearing of appeal, there can be no denial of due process by fact he hears appeal even though he also was trial judge, and law revising appellate procedure to make trial judge ineligible to sit on appeal does not become effective prior to July 1, 1962.

 

3. Judges-Application To Disqualify

              Application to disqualify judge should be filed at earliest opportunity and in case of appeal, immediately after notice of appeal.

 

4. Contracts--Statute of Frauds-Not Part of Common Law; Common Law-Statute of frauds-Not Part of Common Law Brought to United States

              There is no Statute of Frauds in American Samoa since it is not part of common law of England which was brought to United States and is of force only when specifically enacted by legislature. [3ASR584]

 

5. Contracts-Statute of Frauds-Partner May Obligate Another

              Even under Statute of Frauds, one partner may obligate partnership by signing contract, acting as agent for other partners.

 

6. Admiralty-Lease of Vessel-Writing Unnecessary

              Law providing that lease of land not in writing constitutes tenancy at will is not applicable to ships nor interest therein.

 

7. Evidence-Judicial Notice--Judicial Records

              Court will take judicial notice of records in another proceeding, particularly where issues and parties are interrelated.

 

8. Appeal and Error-Judicial Notice on Appeal

              Appellate court may take judicial notice of any matter which trial court may, including records of interrelated proceeding.

 

9. Personal Property-Lease of Vessel-Condition Precedent

              Evidence supports conclusion that parties did not intend signature of one of owners to be condition precedent to execution of valid lease.

 

10. Personal Property-Lease of Vessel-Signature of Owner

              Finding of trial court that signature of one of owners of vessel on lease agreement was not necessary to valid lease was not in error.

 

11. Evidence-Trial Court-Delineation of Evidence

              It is not error for trial court to delineate evidence surrounding signing of lease and actions of attorney in procuring or omitting such signature, since trial court is judge of fact and law.

 

12. Personal Property-Lease of Vessel-Modification-Without Consideration

              Modification of lease to strike condition that insurance should be required for vessel by lessees only if available in American Samoa was invalid since there was no consideration for such modification.

 

13. Contracts-Validity

              Where actions of parties indicate that they treated contract as valid, Trial Court is not in error in finding contract valid.

 

14. Personal Property-Lease of Vessel-Condition Precedent

              Statement by one of lessors that lease would not be valid without signature of co-owner was merely incorrect legal opinion and not condition precedent to valid lease.

 

15. Personal Property-Lease of Vessel-Estoppel From Denying Validity

              Where lessor acquiesces in lessee's possession of ship for period of months, he waives possible condition precedent in lease, which was not complied with.

 

16. Personal Property-Lease of Vessel-Estoppel From Denying Validity

              Lessor who accepts benefits accruing under lease cures any defect by implied ratification.

 

17. Personal Property-Lease of Vessel-Estoppel From Denying Validity

              When lessees accept benefits of lease, they are estopped from denying validity of lease. [3ASR585]

 

18. Personal Property-Lease of Vessel-Estopped From Denying Validity

              Where lessee's attorney states to lessor that signature of co-owner is not necessary to validity of lease, he is estopped from denying validity of lease because such signature was not obtained.

 

19. Admiralty-Lease of Vessel-Repudiation; Personal Property-Lease of Vessel-Repudiation

              Where lessor brings an injunction suit to regain possession of ship, and then withdraws suit in consideration for lessee's promise of indemnification if ship should be lost, this is not repudiation of lease agreement where lessee does not treat it as such and continues to possess ship.

 

20. Admiralty-Lease of Vessel-Delivery of Vessel

              Change of possession of ship is equivalent of delivery, executing lease agreement.

 

21. Personal Property-Lease of Vessel-Repudiation of Lease

              When lessor withdraws his repudiation of lease, he obligates lessee to perform his commitments under lease.

 

22. Personal Property-Lease of Vessel-Supplementary Agreement

              Agreement by lessee to indemnify lessor for loss of ship in consideration for lessor's withdrawal of repudiation does not constitute new lease since it does not contain all terms necessary, to lease but is supplementary agreement.

 

23. Personal Property-Lease of Vessel-Surrender of Lease

              Circumstantial evidence concerning failure of lessee's business may be weighed by court in considering validity of attempted surrender of lease.

 

24. Personal Property-Lease of Vessel-Surrender of Lease

              Attempted surrender of lease does not release lessee from obligations unless it is accepted by the lessor.

 

25. Judgments-Estopped Judicial Proceedings

              Party may be estopped from taking inconsistent position in subsequent judicial proceeding.

 

26. Judgments-Estoppel From Taking Inconsistent Position-Prior Success Necessary

              Party may not be estopped from maintaining inconsistent position in subsequent judicial proceeding unless he was successful in prior judicial proceeding.

 

27. Judgments-Estoppel From Taking Inconsistent Position-Voluntary Dismissal

              Where suit is dismissed by plaintiff voluntarily, he is not estopped from taking inconsistent position in subsequent proceedings. [3ASR586]

 

28. Personal Property-Lease of Vessel-Estoppel From Denying Validity

              Where lessee in prior judicial proceeding maintained that lease was valid contract, he is estopped from maintaining in subsequent proceeding that lease is not valid contract.

 

29. Criminal Law-Perjury-Materiality

              False statement must be material to issue or question under consideration in order to constitute perjury, and false statement with respect to who types letter does not constitute perjury.

 

30. Criminal Law-Perjury-Misleading Questions

              Misleading questions and questions containing more than one proposition to which different answers might be applied will not support conviction for perjury based on their answers.

 

31. Contracts-Agency-Agent Authorized to Sign

              Agent may sign contract for principal whether or not principal is present, and alleged erroneous statement of trial court that principal was present was harmless error.

 

32. Judge-Writing Opinions

              Fact judge wrote opinion using his notes and reporter's notes does not constitute error.

 

33. Appeal and Error-Errors of Trial Court-Questioning of Attorney

              There was no error in court's questioning of attorney for lessee to determine whether his relationship with defendants was such that he was also liable under lease.

 

            Heard before MORROW, Chief Justice, and MALAUULU and TAGO, Temporary Associate Judges, at Fagatogo on October 2 and 3, 1961.

Bernard K. Trask, counsel pro se and other Appellants.

Rolland Metcalfe, counsel for Appellees.

 

MORROW, Chief Justice

 

            This is an appeal from a money judgment rendered by the Trial Division against the appellants (hereinafter referred to as the defendants) and in favor of the appellees (hereinafter referred to as the plaintiffs) .The judgment was rendered on May 2, 1961. On May 9th notice of appeal was filed, and the appeal was set down for hearing on May 31, 1961, Mr. Trask, counsel for the defendants, having [3ASR587] requested the Chief Justice shortly after notice of appeal was filed to have it set down for hearing within three weeks. The defendants requested two continuances which were granted, the appeal, pursuant to the second request for a continuance, being set down for hearing at 9:00 A.M. July 24, 1961.

            [1] About 30 minutes prior to the time the appeal was finally set down for hearing, Mr. Trask filed a motion to disqualify the Chief Justice, claiming that if he sat in the hearing of the appeal as he is required to do by Sections 167(a) and 181 of Chapter 5 (Judiciary and Judicial Procedure), § 10, Amendments, Nos. 11-59, 1952 to the Code of American Samoa, there would be a denial of due process. Mr. Trask also claimed in the motion to disqualify that the Chief Justice was biased and prejudiced against him personally. Just a few minutes after filing the motion to disqualify, Mr. Trask filed a request with the Governor that the Governor appoint a temporary Chief Justice for the reasons set out in his motion to disqualify. The Governor is authorized by Section 168 of the above Chapter 5 (Judiciary and Judicial Procedure) to appoint a temporary Chief Justice "In case of the disability, disqualification, or absence of the Chief Justice. .."

            The Governor considered Mr. Trask's request and did not appoint a temporary Chief Justice.

            [2] The motion to disqualify came on for argument and was denied by the decision of the three judge court. The Court considered that the above Sections 167(a) and 181 requiring the Chief Justice to sit were constitutional and that if the Chief Justice sat in the hearing of the appeal there would be no denial of due process of law. In his argument on the appeal itself, Mr. Trask claimed that Pub. Law 7-3 revising the Appellate Court system for American Samoa made the Chief Justice ineligible to sit. It does [3ASR588] not have such an effect since by its provisions it does not become effective prior to July 1, 1962.

            Also in his argument on the motion, Mr. Trask, referring to the alleged matter of bias and prejudice, said that he might "be entirely wrong and the Court may disagree" when he (Mr. Trask) alleged that the Chief Justice was biased and prejudiced against him personally. The Court in its opinion denying the motion said that, "The Chief Justice says not only that Mr. Trask is entirely wrong but also that the Court disagrees. Any belief that Mr. Trask may entertain that the Chief Justice has bias and prejudice against him personally is a mistake on Mr. Trask's part. The Chief Justice does not entertain personal bias or prejudice against him." Mr. Trask did not file a motion to disqualify the Chief Justice when the principal case was heard in April 1961. He waited until 30 minutes before the hearing on the appeal was to begin to file his motion.

            [3] The motion to disqualify was filed too late. It could have been filed immediately after the notice of appeal was filed on May 9, 1961 instead of waiting until 30 minutes before the hearing on the appeal was to begin on July 24, 1961, two-and-one-half months later. "It is a well recognized rule that an application for the disqualification of a trial judge must be filed at the earliest opportunity." 30 Am.Jur. 98. We think the same rule should apply in this case. The motion to disqualify was denied, and the Chief Justice sat in the hearing of this appeal as he is required by law (above Sections 167(a) and 181) to do. Both the Samoan .judges on the Court and the Chief Justice considered that the latter should perform his statutory duty by sitting. The decision in which the motion to disqualify was fully [3ASR589] considered has already been rendered, and there is no need to give further consideration to it in this opinion.

            The plaintiffs William Steffany, Joe Steffany and their aged Samoan mother Alo Pepe are the owners of the M. V. SAMOA. They claim rent due under an alleged lease of the vessel entered into in September 1959 between the plaintiffs and the defendants Scanlan, Langkilde and Trask.

            The trial court found that the lease was valid; that the defendants had taken possession of the vessel the day following the signing of the lease, kept possession under the lease until March 13,1961 and had paid no rent. Under the terms of the lease, rent at the rate of $1,000 per month was to be paid beginning on "the first day upon which the M. V. SAMOA shall be put in actual service as a fishing vessel." The defendants were to fit the M. V. SAMOA out as a fishing vessel at their own expense. It was stipulated between the parties that the defendants put the vessel into service as a fishing vessel on March 13, 1960. The lease was to continue in force for one year after the vessel was put into such service.

            The lease provided in Clause 11 "That upon the signing of this agreement by the lessors, Joseph and William Steffany, the lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes."

            Pursuant to Clause 11, the defendants took possession of the ship the day after the lease was signed and proceeded to refit it for fishing. The plaintiffs resumed possession of the ship 12 months after it was put into service as a fishing vessel.

            The vessel was rented in the name of Herbert J. Scanlan one of the partners, the lease being signed by him for the defendant partners who were doing business under the name of "Samoan Fisheries." However, the lease itself contained no reference to Samoan Fisheries. The lease was [3ASR590] also signed by William Steffany and Joseph Steffany, but it was not signed by Alo Pepe, their elderly Samoan mother. She, although a co-owner of the vessel with her two sons, had always left everything in connection with it to them.

            No rent having been paid, the plaintiffs instituted an action against the defendants on January 31, 1961, for $11,000, i.e. for 11 months' rent at $1,000 a month. The case came on for trial and on May 2, 1961, the Trial Division of the High Court rendered judgment for the plaintiffs for $10,000, from which judgment the defendants have appealed.

            Section 213, § 10 of Amendments, Nos. 11-59, 1952 to the A. S. Code provides that:

 

"The findings of fact of the Trial and Probate Divisions of the High Court in cases tried by them shall not be set aside by the Appellate Division of that Court unless clearly erroneous..."

 

            [4] The defendants resisted payment of the rent on a number of grounds, the first of which was that the lease was void under the Statute of Frauds, not being signed by Alo Pepe Steffany, one of the co-owners of the M. V. SAMOA. As indicated by the trial court in its opinion, this contention overlooks the fact that there is no Statute of Frauds in the American Samoa Code. Furthermore, the English Statute of Frauds was not brought to American Samoa as a part of the common law. With respect to the matter of the English Statute of Frauds having been brought to states in the United States as a part of the common law, the editors of American Jurisprudence say this:

 

"The English Statute of Frauds, 29 Car. II, is usually not considered as extending to this country, and is of force here only by virtue of its adoption by the legislatures of the several states, directly or indirectly (emphasis ours)." 49 Am.Jur:364.

 

Since, as is clear from this statement of the law, the English Statute of Frauds was not brought to the States as [3ASR591] a part of the common law, it would follow that it was likewise not brought to American Samoa as a part of the common law.

            However, if it should be conceded, but without agreeing, that the English Statute of Frauds did apply to the lease, it is very clear that it was complied with when Herbert Scanlan signed for the defendants. The only possible part of the English statute that could have been applicable was that part of the 4th Section which provides that:

 

"No action shall be brought. ..whereby. ..to charge any person ...upon any agreement that is not to be performed within the space of one year from the making thereof. ..unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized (emphasis ours) ."

 

The text of the English statute copied from 27 C.J. 123 n. 8 is set out in the appendix to this opinion:

            The editors of Corpus Juris Secundum say that:

 

"The two general rules as to the party or parties who must sign the memorandum are that a party not signing the memorandum cannot be charged on the contract, and that the only signature made necessary by the statute is that of the party to be charged, or, in other words, defendant in the action or the party against whom the contract is sought to be enforced (emphasis ours). Mutuality of obligation is not essential to the validity of a contract, in so far as its compliance with the statute of frauds is concerned, and the fact that the contract may not be enforceable against one party, because not subscribed by him, is no defense to the other, by whom it is signed." 37 C.J.S. 698.

 

And the editors of Corpus Juris Secundum further say that:

 

"A partnership generally may sign a memorandum, so as to comply with the Statute of frauds, by the act of one partner in signing the partnership or his individual name (emphasis ours)." 37 C.J.S. 703. [3ASR592]

 

            [5] It is clear under the law that when partner and defendant Herbert J. Scanlan signed his name to the lease, the Statute of Frauds, had it been in force here, would have been complied with. Even if the Statute of Frauds had been applicable, it would not have been necessary, as far as the statute is concerned, to have had the signatures of any of the plaintiffs including Alo Pepe on the lease. The statute only requires that "the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him lawfully authorized,. (emphasis ours)." The statute does not require that the plaintiffs in the action sign; it is only the defendants, the parties to be charged, or their agent, who must sign. The parties charged in this case are the defendants Scanlan, Langkilde, and Trask. Scanlan signed for the defendants.

            [6] Section 1 of the Statute of Frauds provides that leases of land for years not put in writing and signed shall have the force of leases at will only. See appendix, page 640. We think it was this section that the defendants were relying upon when they contended that they were tenants at will only. However, the section has no application because a ship is not land, nor an interest therein.

            [7] The proper consideration of this appeal makes it necessary for the Court to take judicial notice of the record in an injunction case, No.4-1960, in which the plaintiffs were the same as the plaintiffs in this case and the defendants the same, except that one Marvin Cox was a defendant in the injunction case but not this case. In the injunction case the plaintiffs (the Steffanys) filed a petition on February 21, 1960, in which they sought an order restraining the defendants "from further using the M. V. SAMOA," and also "granting possession of said vessel to [3ASR593] William Steffany until such time as the tentative agreement between the parties is finalized," The Steffanys claimed in their petition that the lease agreement was only a tentative agreement between the parties. The defendants claimed that the lease was valid. After the hearing on the petition had been partially completed, the plaintiffs (Steffanys) withdrew their petition and thereupon the Court entered the following order:

 

"Upon motion of the petitioners made in open court this 4th of March, 1960, this petition is hereby dismissed."

 

            [8] It is claimed by the defendants on appeal that both cases involved "the same parties, the same issues, and facts and question of law," and the claim is substantially correct. That we may properly take judicial notice of the record in the injunction case is clear.

 

"Also a court may take judicial notice of, and give effect to, its own records in another, but interrelated, proceeding, particularly where the issues and parties are the same or practically the same." 31 C.J .S. 625, citing cases from Federal courts as well as state courts.

 

What transpired in the injunction case was referred to (particularly by the defendants) in the trial of this case and has a definite bearing upon the correct decision on this appeal. It was an interrelated proceeding. Not only may a trial court take judicial notice of the record in an interrelated proceeding, but an appellate court may do likewise.

 

"An appellate court will take judicial notice of any matter of which the court of original jurisdiction may take notice." 20 Am.Jur.55.

 

The trial court could take judicial notice of the record in the injunction case. The Appellate Division may also take judicial notice of that record.

            Defendants Herbert J. Scanlan and Bernard Trask met with Joseph Steffany at the home of Scanlan one evening [3ASR594] in September 1959 for the purpose of signing the lease. Mr. Trask had carried on the negotiations with the Steffanys for the making of the lease and had drafted it for signature. William and Joseph had always handled all matters in connection with the M. V. SAMOA, their elderly Samoan mother having left everything relating to the ship to them. The lessees knew this, having been so informed by Joseph and William.

            The trial court stated in its opinion that at the meeting at Scanlan's home to execute the lease Mr. Trask, who was acting as counsel for himself and his partners in the leasing of the vessel, told the assembled group that it was not necessary for Alo Pepe to sign. Defendants claim on appeal that the Court erred when it so stated. However, Joseph Steffany, who was one of the assembled group, testified on his direct examination with respect to the signing of the lease at Scanlan's house:

 

"Q Did you read the document before you signed it? 
"A I read it but just a few sentences because my eyes-I didn't have any glasses on; my eyes. 
"Q Did you have any lawyer or any other adviser about the time that you signed it? 
"A Well, we-Mr. Trask, there, was supposed to be my adviser, and he was acting for both sides. 
"Q Was there any remark made about the necessity or otherwise of your mother's signature? 
"A Yes. It was brought up by Mr. Trask, says she didn't need to. 
"Q Mr. Trask said Alo Pepe's signature was not needed? 
"A Not needed because Bill and I was enough."

 

We cannot say that the trial court's statement that Mr. Trask told the group that it was not necessary for Alo Pepe to sign was contrary to the evidence. It finds definite support in the evidence.

            On his cross-examination by Mr. Trask, Joseph testified: [3ASR595]

 

"MR. TRASK: May it please the Court. 
"Q Joe, when this exhibit, Defendants' Exhibit 1 in evidence, which you have identified to be the agreement you signed at Mr. Scanlan's house, in Clause 11 we have these words, and I quote: 'That upon the signing of this agreement by the Lessors Joseph and William Steffany, the Lessee shall take immediate possession of the M. V. SAMOA and shall commence refitting of said vessel for fishing purposes.' Do you remember that? 
"A Yes, sir. 
"Q Do you remember in the preliminary discussions when I asked you if your mother was a part-owner of the vessel? 
"A I don't remember. 
"Q Do you remember telling me what you have said in Court today, that you and your brother Bill always took care of all of the business for her, that she would leave it up to you boys? 
"A Yes sir. 
"Q And that is the reason why we have this Clause No. 11? 
"A Yes. 
"Q And you knew, did you not, Joe, that after you and Bill signed and we took possession immediately, as a matter, of fact, the very next day, and started to work on her? 
"A Yes. 
"Q And you knew that your mother's signature was not necessary on this document? 
"A Yes."

 

            During the hearing in the principal case, Mr. Trask stated to the trial court in referring to the lease:

 

"It is not signed by Alo Pepe Steffany. The parties felt at the time, Your Honor, that the necessity, that there was no necessity for Alo Pepe to sign because, as the evidence brought out, both Joe and William took care of all the matters pertaining to the boat."

 

            [9] It is quite clear from the evidence and Mr. Trask's own just-quoted statement to the Court that it was intended by the parties that Alo Pepe should not sign. And it is also clear from Clause 11, drawn by Mr. Trask, which provides:

 

"That upon the signing of this agreement by the Lessors Joseph and William Steffany, the Lessee shall take immediate possession [3ASR596] of the M.V. SAMOA and shall commence refitting of said vessel for fishing purposes."

 

that it was not intended by the parties that Alo Pepe's signature was to be a condition precedent to the existence of a valid lease. We do not think that the evidence in the record warrants the conclusion that the defendants intended to take possession of the ship and spend several thousand dollars in refitting her for fishing without firs having a valid lease; nor do we think it was the intention of the plaintiffs to turn over their ship to the defendants without a prior valid lease. Neither the circumstantial evidence nor the testimonial evidence point to any such intention by either party.

            [10] We think that the evidence before the trial court fully warranted the conclusion that it was intended by the parties that Alo Pepe was not to sign. Furthermore, the record is devoid of any evidence that Mr. Trask, who took care of drafting the lease and getting it signed, ever made any effort to procure her signature on the lease. We conclude that the finding of the trial court that Alo Pepe's signature was not necessary to a valid lease was not error, and that this finding should not be set aside on appeal.

            With respect to the actual signing of the lease, it appears that one evening in September 1959 Mr. Trask had four or five copies of it on hand at Scanlan's home to be signed. Partner Herbert J. Scanlan testified that he signed for the defendants. Joe Steffany signed. It was then nearly 10:00 o'clock in the evening. Mr. Trask took the copies already signed by Herbert and Joseph to William to get William's signature. William was on the ISABEL ROSE about ready to sail for Apia. At first he refused to sign, partly because he was "kind of afraid" to sign, as he testified, and partly because he had not read the document. He couldn't read without glasses, and he had no glasses. According to his testimony, Mr. Trask told him to sign, which he did after [3ASR597] being informed that his brother Joseph had signed.

            William testified that he did not trust Mr. Trask. After he signed he told Mr. Trask in substance that the lease was "no good” without Alo Pepe's and Helbert Scanlan's signatures. We believe that William was in error when he implied that Herbert had not signed, because Herbert himself testified that he had signed at his home with Mr. Trask and Joseph present. William signed the four or five copies on the ISABEL ROSE. According to William's testimony, Mr. Trask tried to get all of the copies away from him. But William did get one copy back from Mr. Trask which he gave to his son for ultimate delivery to Wayne Storer, the Manager of the Bank of American Samoa, or to the Attorney General.

            It is claimed on the appeal that the trial court committed error. in referring in its opinion to the testimony of William that he did not trust Mr. Trask and that Mr. Trask had tried to keep all the copies. The trial court in its opinion did not go outside the scope of Mr. Trask's final argument, in which he said:

 

"During the hearing, Your Honor, there was inferences and innuendoes that perhaps I personally took advantage of the plaintiffs. One witness said 'I don't trust you.' And he had some other derogatory remarks."

 

Mr. Trask then proceeded to argue to the Court that he had not taken advantage of the plaintiffs.

            As a matter of fact, the trial court indicated in its decision that it did not believe from the evidence that Mr. Trask permitted the lessees to take possession of the ship without the lessees first obligating themselves in writing for the rent. That would indicate that the Court considered that Mr. Trask was not taking advantage of the plaintiffs; that he was not guilty of any dishonesty. Certainly the $1,000 a month was considered to be a proper rent and if the lessees were obligated in writing to pay it, no [3ASR598] advantage was being taken of the plaintiffs. The trial court concurred with Mr. Trask's argument that he did not take advantage of the plaintiffs. The opinion of the trial court on this point is not a ground for reversal when the record shows the fact to be that Mr. Trask himself made an issue of his integrity in his own argument; and especially when the Court agreed with him that he had not taken advantage of the plaintiffs. Also the Court said in its opinion that, "We think that Mr. Trask was perfectly honest in his drafting of the lease...."

            [11] Furthermore, the trial court was the ,judge of the facts as well as the law. The Court saw the witnesses and heard them testify. It was not error for the trial court to delineate in its decision evidence surrounding William's signing.

            It is next claimed that the trial court erred when it considered that William was expressing only a sailor's legal opinion when he told Mr. Trask at the time of signing that the contract was "no good" because his mother and Herbert had not signed. (As a matter of fact, Herbert had signed at his home before Mr. Trask took the lease up to the ISABEL ROSE to get William's signature.)

            We think when Mr. Trask told the assembled group at Scanlan's home that it was not necessary that Alo Pepe sign (and the testimony* of Joseph Steffany above quoted shows that he did) that he was merely expressing a legal opinion, too; and that his legal opinion was based upon the fact that William and Joe had always handled everything in connection with the ship. In other words, Counsel Trask in effect, as the testimony shows, told the assembled group that the contract was good without Alo Pepe's signature; Whereas William when he signed told Mr. Trask that the contract was "no good" without Alo Pepe's signature. We [3ASR599]think that Mr. Trask's legal opinion was correct and that William's legal opinion was wrong.

            The defendants are asking the Court to construe William's statement when he signed as if he had said: "Now, Mr. Trask, I am signing this contract upon the condition precedent that it is not to be binding on me until after my mother signs."

            Mr. Trask, to whom William's remark was addressed, obviously did not so construe the remark that the contract was "no good," for he and the other defendants took possession of the ship the next day pursuant to Clause 11, written by Mr. Trask, which clause expressly provided that they should take immediate possession "upon the signing of this agreement by the Lessors, Joseph and William Steffany."

            It appears to us from the testimony in the record that the parties got along quite well together for about four months after the lease agreement was signed. Around early February 1960 the defendants took the ship to sea a number of times on trial runs. On one of these runs, according to the testimony of William, when the ship broke clown about 11 miles out at sea, there was a call for help, and William, Captain Benson, and William Reed went out with two launches and towed it in. In response to an inquiry of William as to who v vas in command on these trips around early February, he answered:

 

"I believe his name is Cox, that skinny fellow, engineer on the Samoan Airline. ...I guess he was lost. He was never born a seaman."

 

            Clause 9 in the lease provided that "The Lessee shall, if possible in .American Samoa, insure said vessel for a reasonable amount made payable to the Lessors." It appeared that it was not possible to secure insurance in American Samoa. However, that did not mean that it could not be procured else. [3ASR600]

            There was no insurance on the ship, and William began to complain to the defendants about it around January or early February 1960. This was understandable in view of the fact that the ship had to be towed in 11 miles. People familiar with the sea know that a broken-down ship near an island can easily be blown on a reef and quickly destroyed. William's complaint was not about his mother not having signed the lease, nor was it about the fact that he had said that the lease was "no good" when he had signed it about four months earlier.

            During the examination of William in the principal case, Mr. Trask, referring. to the difficulty over the insurance between the parties, stated to the Court:

 

"That is the key to the whole problem. It's the insurance that gave vent to all this difficulty. It's the seed to the disruption of our (the parties) fine relationship."

 

            Again in his final argument to the Court, Mr. Trask said:

 

"The parties existed harmoniously, Your Honor, under that contract (the Sept. 1959 lease agreement) for nearly four months."

 

            William testified that:

 

"The reason why I hold the ship up is no insurance, not insured."

 

            [12] After the question of insurance was raised by William, he and Mr. Trask met at the Bank of American Samoa where they initialed a modification in the lease, striking out of insurance clause 9 the words "if possible in American Samoa." This was about January or early February 1960 and about four months after the lease was signed. Testifying with respect to the lease at this time, William said:

 

"Everything was nice except that the insurance was not settled."

 

The trial court held that this modification was without consideration and never became effective. [3ASR601]

            From William's testimony and Mr. Trask's statements to the Court, it is apparent that the parties considered that the contract was valid. The foregoing shows that the parties did not consider that it was void because of the lack of Alo Pepe's signature or because William had said it was "no good" when he signed. The difficulty was lack of insurance.

            [13] The parties themselves having treated the contract as valid, we cannot say, in the light of the evidence, that the finding of the Court that it was valid was contrary to the eight of the evidence. There was no error in the Court's so finding. It was the judge of the facts and the law.

            The record in the prior injunction case shows that the defendants in that case did not claim that there was no contract because Alo Pepe had not signed, nor did they claim that William had signed conditionally. Instead they took the position and claimed that there was a contract.

            The record in the injunction case shows that the Court in that case asked Mr. Trask, who was representing himself and the other defendants, this question:

 

"Now do you claim that you have a contract?"

 

and Mr. Trask's answer to the Court was:

 

"We do sir, and I am going to put it in evidence when I am ready."

 

            Furthermore, according to the record in the injunction case, Mr. Trask in making an argument to the Court resisting a motion for a continuance said:

 

"Everything the bank has asked we have granted, notwithstanding the fact that we have our agreement."

 

Here was another statement by the defendants to the Court that they had a contract.

            The following taken from the record in the principal case makes it very clear that in the injunction case the [3ASR602] defendants claimed and took the position that they had a contract and that they resisted the petition in the injunction case:

 

"CJ: Did the defendants jn the injunction suit resist the petition? 
"MR. TRASK: Yes, indeed, Your Honor. We were in court a whole day jn argument. 
"CJ: In other words, you resisted it in repudiation? 
"MR. TRASK: That is right, Your Honor. Just a moment, Your Honor. We did not resist the repudiation. We resisted the petition which calls for repossession. 
"CJ: In other words— 
"MR. TRASK: (Interposing) We tools the position that there was a contract. 
"CJ: In other words, there was still a contract when you had a right to continued possession of the boat? 
“MR. TRASK: That is correct. That only illustrates, Your Honor, the attitude of the defendants acting in good faith. They entered into a contract four months previously with the plaintiffs, feeling and agreeing that there was a valid contract. Why? Because the plaintiffs made representations that there was no necessity for the mother to sign; that they always acted for their mother."

 

            It is quite apparent from the foregoing, and particularly Mr. Trask's statement to the trial court that, "They (the defendants) entered into a contract four months previously, feeling and agreeing that there was a valid contract," that the defendants did not construe William's statement that the contract was "no good" as making his signing conditional. Mr. Trask told the Court in the principal case that "We (the defendants) thought we had an agreement from September to January, until January when things blew up." Obviously, the defendants did not construe William's signing as conditional. They considered that they had a valid contract.

            As will appear later, Herbert J. Scanlan, the lessee, sometime after the contract was signed by William, initialed two notations inserted in it in order to correct [3ASR603] clerical errors contained therein. This is a circumstance leading to the conclusion that the defendants considered the contract as valid and binding on the parties. There would be no point in the defendants initialing the notations if they considered the contract to be a nullity.

            [14] There was no error in the trial court's conclusion that William's signing was not conditional. Its conclusion that William's statement was a mere legal opinion and not a condition finds substantial support in the record, and we cannot say that the Court's finding with respect thereto was erroneous.

            [15] If it should be conceded, but without agreeing, that William's signing was conditional, we agree with the trial court that he waived the condition when he raised no objection to the defendants having possession of the ship pursuant to Clause 11 and fitting her out as a fishing vessel. Upon William's return from Apia, he saw many times that the defendants were in possession of the ship over a period of months and that they were refitting her, yet during all that time he raised no objection to such possession and refitting. He acquiesced in the defendants' possession of the ship and if there had been any condition to his signing, his acquiescence would have been a waiver of it. And once having waived the condition his subsequent conduct could not reinstate it.

            [16] We also think that if there was a defect in the contract, but without agreeing that there was, that defect was cured by ratification by William and that the ratification would be implied by William's knowledge that the ship had been taken by the defendants and his raising no objection thereto.

            The editors of Corpus Juris Secundum say this:

 

"A defect in the method of executing a written instrument evidencing a contract, or even want of execution, may, in general, be [3ASR604] cured by ratification which may be express or implied. A party who accepts benefits accruing under a contract may be bound notwithstanding defects in, or want of, execution (emphasis ours).17 C.J.S.419.

 

            When the defendants took possession of the ship and kept possession for refitting, they accepted the very benefits specified in the writing signed by William and which Alo Pepe had not signed. That the benefits accepted may not have resulted in financial gain did not make them any the less benefits. The plaintiffs were deprived of the possession of their ship, which was a legal detriment, and the defendants gained possession and kept possession, which was a legal benefit. The defendants got what they bargained for, viz., the possession of the ship, and that was a benefit. The fact that the venture was unprofitable is irrelevant.

            [17] And we think also that the defendants having accepted benefits under the contract; were later estopped from "denying its validity. The editors of American Jurisprudence say:

 

"Estoppel is frequently based upon the acceptance and retention by one having knowledge or notice of the facts of benefit from a transaction, contract, instrument, regulation, or statute which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions, and it has been said that such cases are referable, when no fraud, either actual or constructive is involved, to the principles of election or ratification rather than to those of equitable estoppel. The result produced, however, is clearly the same and the distinction is not usually made. Such estoppel operates to prevent the party thus benefitted from questioning the validity and effectiveness of the matter or transaction in so far as it imposes a liability or restriction upon him, or, in other words, it precludes one who accepts the benefits from repudiating the accompanying or resulting obligation." 19 Am.Jur .682-687.

 

            Since the defendants accepted benefits under the contract when they took possession and kept possession (the [3ASR605]benefit specified in the September 1959 lease, agreement) of the M. V. SAMOA, knowing that Alo Pepe had not signed and also that William had told Mr. Trask, when signing, that the contract was "no good", it follows that the defendants are estopped from denying its validity.

            See also III, Williston on Contracts § 687 and 17 C.J.S. 926-7.

            It is the conclusion of the Appellate Division that the defendants' claim in the injunction case that they had a contract was correct, and that the trial court, when it so agreed in the principal case, did not commit error. The finding of the trial court that the defendants had a valid contract is substantiated by the evidence.

            The defendants claim that the trial court was in error when it said in its decision "that he (William) changed his mind about its (the lease agreement) legality by the time the lessors delivered possession of the ship to th, lessees the next day," and that it was also in error when it said that "the plaintiffs acquiesced in it (the lease) without Alo Pepe's signature by delivering the ship to them (the defendants)."

            We note that Mr. Trask told the trial court that:

 

"The parties existed harmoniously, Your Honor, under that contract (the September 1959 lease agreement) for nearly four months." (See this quotation on page 600.)

 

            We think that Mr. Trask's statement indicates quite clearly that William acquiesced in the lease without his mother's signature. And, furthermore, we believe that Mr. Trask's statement is well supported by the evidence. And we think also, in view of his statement, that William must have changed his mind about the legality of the lease very soon after he signed it, at which time he said it was "no good" without his mother's signature. If the Court was in error as to the precise time he changed his mind this time, it was harmless. [3ASR606]

            At the trial William testified in part:

 

"Q Then in February, four months after this document (the lease agreement of September 1959) you concluded that there was no agreement because your mother did not sign? 
"A Yes, I did; yes."

 

This indicates that William changed his mind back again in February as to the validity of the lease agreement because of the lack of his mother's signature. Other testimony of William's, as well as the fact that he signed the petition for an injunction and repossession filed February 21, 1960 and sent the letter of February 16, 1960, also indicates quite clearly that he changed his mind back again in February. If the trial court was in error as to the time William had any of these vacillations of mind as to the legality of the lease agreement, it was harmless, for the defendants, having accepted benefits under the September 1959 lease agreement, were estopped to deny its validity. See quotation from 19 Am.Jur. 682-687 at page 604, supra.

            Furthermore, William did not say that he had signed the lease agreement of September 1959 upon the condition that his signature was not to be binding unless and until his mother signed. He expressed the opinion that the lease was "no good" without her signature, and he concluded in February that there was no agreement because she hadn't signed. These were statements of opinion and not statements of a condition precedent. But regardless of what they were, the defendants, having accepted benefits under the lease agreement, were estopped from denying its validity. And, as we have just indicated, any error that the trial court may have made as to the time William had his vacillations of mind was harmless. Any vacillation of mind by William could not wipe out an estoppel.

            [18] The defendants claim that the trial court erred when it said in its opinion that: [3ASR607]

 

"Furthermore, while it may not be necessary to a decision, We remark that since Attorney Trask, while acting as counsel and agent of the defendants, stated to the parties before anyone signed that Alo Pepe's signature was not necessary and since the lessors delivered