that later, during the last week of August, 1911, the contract was again extended by an agreement which required the appellee to take off the old cabin and build a new cabin, with the understanding that appellee was still working under the May contract last above specified as to compensation; and that, while no time was specified for its completion, the work was to be done at the earliest possible date.

The work upon the boat was completed in December, 1911, at a cost, according to the appellee, of $5,668.65. In the meantime the appellants had, on October 2, 1911, paid the appellee $500 upon account; but, they having failed to pay any further sum, the appellee, having theretofore filed a verified statement of lien in the county court clerk's office, filed this action on February 1, 1912, and levied a specific attachment upon the boat to secure its lien, under section 2482 of the Kentucky Statutes. The appellants thereupon released the boat by executing the bond provided by section 2484 of the Kentucky Statutes.

Before answering, the appellants, by a special demurrer, raised the question of the jurisdiction of the Breckenridge circuit court to entertain this action. The objection to the jurisdiction was based upon the contention that the claim sued on, and the lien asserted by the appellee, were of exclusively admiralty cognizance, and that the jurisdiction in all such cases was in the admiralty courts of the United States, and not in the state courts. The plea to the jurisdiction was overruled, whereupon the defendants answered.

The answer and counterclaim is in six paragraphs. After denying the allegations of the petition and the items of the account sued on, and controverting appellee's right to a lien, the fourth paragraph of the answer alleged that the work done by appellee was done under the written contract of March 23, 1911, and not otherwise.

The fifth paragraph alleged that all the work charged for in the account sued on was contracted to be done and performed for the sum of $1,690.66, plus $200 for extra work; and that on October 2, 1911, appellants had paid appellee $500 by their check on the Owensboro Banking Company, which recited on its face that the payment of said $500 was for reconstructing the R. D. Kendall under the contract of March 23, 1911; and that, having accepted said check, the appellee was estopped to claim it had any other or additional contract with the appellants, or that appellants had ever agreed or promised to pay appellee any sum except as specifically stated in the written contract of March 23, 1911.

The sixth paragraph charged that appellee failed to comply with its contract of March 23, 1911; that there was no other contract between the parties; and that the

and all the work done by it was fully covered by that written contract.

By way of counterclaim, the answer further alleged that the boat as reconstructed was not seaworthy; that appellee did not construct the hurricane deck according to the contract, whereby appellants were damaged in the sum of $500; and that appellee further broke its contract by failing to complete the work within the time prescribed by the contract, whereby appellants had lost various items of business, aggregating $3,234.51.

By an amended answer and counterclaim, appellants set out more in detail, and with greater particularity, the instances wherein appellee had broken and violated its contract, specifying the front stairway, the hull of the boat, the outriggers, the caulking of the hull and the hurricane deck, as some of the instances in which the work had been imperfectly and unskillfully done.

The reply admitted the plaintiff entered into the written contract of March 23, 1911, but denies that all the services rendered by the appellee were performed under that contract; and while admitting that the R. D. Kendall was delivered to the appellee under said written contract, to be remodeled and rebuilt according to the terms thereof, the reply further alleged that the said written contract was subsequently abrogated, and that in lieu thereof an additional contract or contracts were entered into in May and August, 1911, as above indicated, for additional repairs.

Upon the subject of the May contract, the reply said:

"The plaintiff telephoned to the defendants, and the defendant J. T. Rounds came to Cloverport, Ky., and, after looking over the boat and being told of the suggestions made by the said government inspectors, the said J. Ť. Rounds then and there abrogated the written contract the following agreement, which agreement was filed with the petition and in lieu thereof made acquiesced in by the plaintiff, to wit: That all the work as specifically set forth in said written contract should be done, but in addition thereto all planking and all timbers were to be made anew in said boat, all deck timbers were to be made of new timber, and to relay all of the deck; that the plaintiff was to be paid therefor the actual cost of all labor and material furnished, plus 10 per cent.; and that said company, the plaintiff, was to keep strict account of all material and labor to be furnished, to be paid for when the boat was completed. and it was then conjectured that said boat could be completed under said contract about September, 1911."

In setting up the second supplemental contract of August, 1911, the reply further alleged that, after appellee had nearly completed the hull of the boat under the May agreement, the appellants, upon having inspected the boat, suggested that the cabin should be made anew to correspond with the newness of the other parts of the boat, and thereupon ordered the appellee to build the cabin anew on the same terms and conditions, as provided in the May contract, except as to the time of completion; that it

state cannot annex an admiralty lien to a contract for the original construction of a vessel, as that is not under the decisions, maritime by nature, and a state cannot change its nature. But as the power of the state in this regard is limited simply by the admiralty clause of the federal Constitution, it follows that it is free to annex liens to nonmaritime causes of action; such liens being ordinary statutory liens and not maritime liens. For this reason it can give a lien enforceable in its own courts on a contract for the building of a ship."

And again, on page 770 of the same volume, the author in speaking of local statutes which give common-law remedies, further

says:

"But, although a state cannot confer on its courts jurisdiction over a proceeding in rem, it can give them jurisdiction over suits against the master or owners. And it can annex to such suit a process of attachment. The proceeding in rem which is forbidden to the state courts, is a proceeding against the vessel by name as the real defendant in which the vessel itself is judged and sentenced. A proceeding against the owner is not made a proceeding in rem by the fact that it is accompanied by an attachment, for such an attachment is a mere incident to a personal suit, and a mere means of reaching the owner's interest, and in it only his title can be sold, and not a clear title to the property itself."

This is not a new question in this court; on the contrary, the jurisdiction of the state

courts in cases of this character has been

repeatedly invoked and sustained. The common-law jurisdiction, with the common-law remedies, are expressly saved to the state courts by the judiciary act of Congress of September 24, 1789; the judicial power of the United States extending only to cases of admiralty and maritime jurisdiction. This distinction is clearly pointed out in the de

cisions of this court.

Steamboat Hyatt and Owner v. Reitz & Haney, 4 Bush, 395, was a suit in equity against the owner of a steamboat for boilers furnished to the boat and repairs of its engine under a special contract made with the owner of the boat. Claiming a lien on the boat, the petition sought a judgment in per

sonam and also in rem. In that case the

contract was made at Evansville, Ind.; appellant's domicile was in Kentucky; and his boat, running on the Ohio river, was attached at Smithland, Ky., on that river. In affirming the judgment of the circuit court which rendered a personal judgment against the owner and enforced the lien on his boat,

this court said:

"The only question presented by this appeal is whether the contract was technically maritime, and whether, therefore, the state or federal court had jurisdiction to enforce it. Maritime contracts made on the sea or on any.of its tributaries, not within the jurisdictional limits of any state, always operate in rem; and contracts for repairs or supplies of a ship or boat, at the instance of the master only, and not in its home port, are made ex necessitate on the credit of the vessel, and therefore imply a lien on it. But when the contract is made in the home port, or by the owner himself, there or elsewhere, it is presumptively made on his personal credit alone, and does not imply a lien

on his vessel; and this latter class of contracts

so as to give jurisdiction to the federal courts, but all depend on the common law, and are remediable in state courts, according to the local laws, which guide and govern them. To sustain these positions, citations of authorities, which are abundant and uniform, would be unnecessary supererogation."

This doctrine has become so well established by the decisions of both the federal and state courts, including the decisions of this court, that it is only necessary to refer to the cases. See Stewart v. Harry, 3 Bush, 438; Marshall v. Curtis, 5 Bush, 607; Rake v. Owners of the Steamboat Potomac, 6 Bush, 25; Digby v. Kenton Iron Co., 8 Bush, 166; United States Mail Line Co. v. McCracken, 33 S. W. 82, 17 Ky. Law Rep. 1111; Johnson v. Westerfield's Adm'r, 143 Ky. 15, 135 S. W. 425: Schoonmaker v. Gilmore, 102 U. S. 118, 26 L. Ed. 95; Iroquois Transportation Co. v. Delancey F. & I. Co., 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836.

We are therefore forced to the conclusion

that the contract sued on in this action was not a maritime contract, and that the Breckenridge circuit court had jurisdiction of the action thereon, including the enforcement of the statutory lien.

the judgment was improperly entered because, [5] 2. In support of their contention that as it is claimed, the causes of action are stated only in the reply, appellants rely upon sections 98 and 101 of the Civil Code; Spalding v. Alexander, 6 Bush, 160; Spiess' Adm'x v. Bartley, 130 Ky. 279, 113 S. W. 127; and Slone v. Kelley, 143 Ky. 135, 136 S. W. 138.

The argument is that since the Code requires the cause of action to be set forth in

the petition, and section 98 of the Code provides that a reply may only contain (1) a traverse, (2) a statement of facts which constitute an estoppel against, or an avoidance of, a set-off, counterclaim, or defense stated set-off, and (4) a cross-petition, a new cause in the answer, (3) a counterclaim against a of action can only be set up in an amended petition; and that, when it is set forth in the reply, it constitutes a departure in the pleadings, which is prohibited by section 101 of the Code. The argument is sustained, in its general outline, by the authorities cited; they do not, however, fully cover the case we have before us. In the Spiess Case the new cause of action was set up in the reply only, and, no issue having been made by a rejoinder or otherwise, a default judgment was taken against the defendant. The opinion clearly shows that emphasis was laid upon the default feature of the judgment, and that it was reversed for that reason. In the Spalding Case and in the Slone Case, supra, the rule was applied in clear cases of departure; neither case was reversed, however, for an error in misapplying the rule, or at all.

The petition in this case declared upon a contract made "on the ——— day of · 1911," by which appellants employed appellee to repair and rebuild the steamboat R. D.

by the itemized account filed with the petition; the sum claimed being the full amount claimed under the three employments of March 23, of May, and of August, 1911. The answer, having relied exclusively upon the contract of March 23d, and denying that any work was done under any other or different contract, the reply set out specifically the full agreement as originally made on March 23d, and as extended in May and in August, and under which the appellee claimed $5,668.65, as in the petition.

It should not be overlooked that the contract of March 23d provided for extra work, and that it should be paid for at the cost price, plus 10 per cent. for profit, and that the extended or new contracts of May and August were upon the same basis. Strictly speaking, therefore, it cannot be said that the reply sets out a new or different cause of action; it is in substance merely an amplification and reiteration of the petition. And, while it would, perhaps, have been better pleading to present those matters in an amended petition, it clearly appears that appellants were not misled by the inadvertence of the pleader. The appellants controverted the reply and took elaborate proof upon the issue thus made; and, although this was done only after appellants had exhausted their remedies in seeking to correct what they deemed an error of pleading, we refer to the fact in order to show the radical difference between this case and the Spiess Case, supra, where the judgment went by default.

The purpose of all good pleading is to make plain the issues between the parties; and when that has been done, and the case has been tried upon the merits, the courts will be slow to reverse the judgment upon a technical view of the pleadings.

In Ruffner v. Ridley, 81 Ky. 171, we said: "Counsel for appellant also insist that this court cannot consider the effect of the failure of title to the one acre of land on which the dwelling is situate, because it was first set up in the reply, whereas it should have been by amended petition. To this we say that both the court below and the parties treated the reply as an amendment to the petition, and acted upon it on the trial and in the decree as such, and we will therefore so treat it, as the rights of the parties have been fairly and fully considered under it."

Regardless of any error, therefore, that may have been committed by the pleader in this case, it is apparent that appellants were not prejudiced thereby; and, that being true, there is no reversible error.

[6] 3. Is the judgment against the weight of the evidence? Upon this issue the proof is radically contradictory. The testimony of the appellee's witnesses Weatherholt, Pate, McKaughan, and May tends to prove the contract as claimed by the appellee, and that all the labor and material shown by the itemized account filed, and aggregating $5,668.65, were supplied by the appellee in the rebuilding of the boat. Upon the question of

and its cost and value, there is no testimony directly contradicting appellee's proof. Upon this subject appellants have confined themselves to the expert witnesses Wood and Landgrebe, who testified from an inspection of the boat some months after it had been finished. On the other hand, appellant Rounds is positive in his statement that the only contract appellants made was the original contract of March 23, 1911, and that plaintiff did no extra work beyond that called for by that contract, which aggregated about $1,900. Furthermore he says the hurricane roof was weak and unfit for use by large crowds, and that he never knew anything of the extra work that had been done upon the boat until about the time this suit was filed, in February, 1912. He admits, however, that he was in Cloverport on May 25th, when he saw Pate and talked to him, and was there again on June 15th; and on both of these occasions he saw the boat under construction. Jesse was in Cloverport on August 29, 1911, and he also saw Pate and talked with him; and he was there again in June or in the early summer. Jesse was upon the boat and talked with Pate, Weatherholt, and Riddle, the ship carpenter.

Without going into the details of the testimony upon the formation of the contract, it is sufficient to say that Pate, who testifies to the making of the new or extended contracts of May and August, is corroborated by MeKaughan and May, and the further fact that

both Rounds and Jesse visited the boat while

the work was being done and made no objection whatever thereto.

When we consider that the original contract of March 23d contemplated comparatively slight repairs when compared with the Work subsequently done, it is difficult to believe that appellants could have understood that this new work, which resulted in practically building a new boat, could have been embraced in the original contract of March 23d. Yet Rounds is emphatic in his statement that he did not know before February, 1912, that any extra work beyond that contemplated by the contract of March 23d had been done upon the boat. Nevertheless, the record shows that on November 10, 1911, the appellee wrote a letter to appellants inclosing an itemized statement showing that the work done on and material furnished to the boat, to that date, amounted to $3,945.17. The letter not only further requested appellants to carefully examine the statement of account and verify its correctness, but the appellee therein estimated that the cost of the work upon the boat would probably be $5,000.

Rounds denied that he ever received the letter above referred to, although it was reproduced from the files of the appellants and filed in this case as a part of the deposition of Rounds. In view of this exceedingly lay