and others v.
(Uircuit Oourt, S. D. New York.
July 25, 1885.)
Exceptions to Findings of Referee. A. W. Griswold, for plaintiffs. Elihu Root, for defendant. WALLACE, J. Exceptions have been filed by both parties to the findings of the referee to whom this action was referred under an order of the court upon the consent of the parties. Th·e action was brought to recover alleged excessive duties on "charges and commissions" exacted by the defendant, as collector of customs at the port of New York, upon importations made by the plaintiffs between March 21, 1861, and June 30, 1864. The action was commenced in a state court by the service of a summons on tlJe defendant, April 16, 1868, and was thereupon removed to this court. The defendant pleaded (1) the general issue, and (2) the statute of limitations. The plaintiffs replied that defendant departed from and resided out of the state for several successive periods, amounting in the aggregate to 12 months, and that the suit was brought within six years, and 12 months after the cause of action accrued. Defendant rejoined, denying that defendant departed from and resided out of the state for several successive periods, amounting in the aggregate to 12 months, etc. It appears by the bill of particulars and the evidence that plaintiffs' caU'3e of action for the recovery of part of the duties in controversy accrued more than six years prior to the commencement of the action. but within six years, and 12 months prior. The referse has reported in favor of the plaintiffs as to these duties, and the first question raised by the defendant's exceptions to his report relates to the correctness of this finding. As is conceded by counsel for both parties, the case turns as to this point upon the construction and meaning of the state statutes of limitatiou enacted in 1851, and being sections 91 and 100 of the Code of Procedure of that year. Section 91 provided that an action upon a contract, obligation, or liability, express 01" implied, (except a judg.
lIENNEQUIN V. BARNEY.
ment or decree, or a sealed instrument,) should be commenced within six years after the same had accrued. Section 100 provided that if, when the cause of action accrued against any person, he should be out of the state, the action might be commenced after the return of such person into the state; and if, after such cause of action should have accrued, such person should depart from and reside out of the state, the time of his absence should not be deemed or taken as any part of the time limited for the commencement of the action. Under the last section it was well settled by the decisions of the state courts that 2uccessive residences out of the state could be accumulated. The evidence shows that the defendant did depart from and remain out of the state for several successive periods after some of the causes of action for duties accrued, and before the commencement of the suit, which, taken together, amounted to the period of 12 months; that these absences were not a temporary departure, followed by an immediate return, but that he was not absent with any intent to change his domicile, and his domicile was, during these periods, at Kingsbridge, in this state. '1'he question is whether it was not incumbent upon the plaintiff to show more than this, and whether, within section 100, a person resides out of the state during the period when his domicile is within it. It was held in Harden v. Palmer, 2 Eo D. Smith, 172, 175, that. although the statute distinguishes between simply departing from and residing out of the state, it was not intended to apply only to cases where a party has lost his legal residence here for all purposes, and that the word "reside," as there used, means a material absence from the state, as can tradistinguished from a temporary departure followed by an immediate return. Whatever view might be reached if the question were an open one in this court, its consideration is foreclosed by the decision of this No opinion was written court, BLATCHFORD, J., in Dale v. in that case, but the question was presented, as it is here, upon exceptions to a referee's report, and the referee had carefully considered it alld expressed his views at large. The court apparently adopted the opinion of the referee. The facts, the findings, and the exceptions were precisely those now before the court, and the decision then made, holding that the defendant's absences were to be added to the six years, must be deemed controlling in the present case. It is stated by counsel for the defendant that the case of Kaupe v. Ba1'ncy presented the same question, and was decided by the same judge in a different way. This is not apparent from the record in that case, which has been handed up by counsel, and it would seem, from the recitals of the order entered in that case, that the exceptions were only presented for a pro forma disposition of the case. The plaintiffs have excepted to the finding of the referee that they are barred from recovering certain of the duties sued for in the present suit by a recoyery in a former suit against the defendant for a part of the duties on charges and commissions exacted b.y the de-
fendantupon the same importations and liquidated upon the same entries as those in the present suit. In Bartells v. Schell, 16 l!'ED. REP. 341, it was beld by tbis court that a plaintiff cannot split up a single and entire cause of action and make it the subject of different suits, and that in cases like this the liquidation upon each entry was the foundation of a single and entire cause of action against the collector. Following that decision, the referee correctly ruled that when the plai.ntiffs brought their action and recovered judgment for a part only of an entire and indivisible demand, they estopped themselves from subsequently bringing another action for another part of the same demand. See Secor v. Sturgis, 16 N. Y. 548; Baird v. U. S. 96 U. S. 430. The defense was permissible under the general issue. Young v. Black, 7 Cranch, 565. The conclusions thus reached dispose of all the exceptions of the parties which are material for present purposes. Exceptions were raised upon the hearing before the referee to the admission of evidence, which it may be proper to consider in order to indicate the course to be pursued in similar cases which are now pending before the referee. Considerable evidence was introduced by the plaintiffs for the purpose of showing that during the pendency of the action the United States attorney, with the consent or acquiescence of the secretary of the treasury, made an agreement with the plaintiffs' attorney by which, in substance, it was stipulated that the defense of the statute of limitations should not be raised in this case, and a number of other cases of a similar character. All this related to matters quite outside the issues presented by the pleadings, and for this reason, and without passing npon the question of the validity of such an agreement or its effect, it should be held that the objection's and exceptions to the admission of this evidence are well taken. It is apparent, however, that in all the negotiations and correspondence between the attorneys and the treasury department, looking towards an adjustment of this and the other pending actions, the United States attorney only assumed to represent the department, and did not assume to represent the defendant personally. The defendant had long ceased to be a collector, but he was something more than the nominal defendant; and, within the case of Andrae v. Redfield, 12 Blatch£. 407, he could not be prejudiced byanything said or done by the government or its officials without his concurrence.
HOWE SEWIKG-ilIACHlNE CO. V. ROSEKSTEEL.
HOWE SEWING-MAOHINE Co.
ROSENSTEEL and others.
(Oircuit Oourt, W. D. Pennsylvania. August 4,1885.)
CONTRACT-EFFECT OF DEATH OF PARTY.
Where a contract creates between the partics merely a personal relation, the death of either party dissolves that relation.
A written contract between a sewing-machine company and W. recited a sale by the former to the latter of 100 Howe sewing-machines, for the price of which W. had given a series of notes; the company stipulating to accept, on or Lefore their maturity, the amount due thereon in notes of sub-purchasers drawn to the order of W. and guarantied by him. The company was to ship to W. a specified number of the machines monthly, and W. agreed to sell them within a specified territory at the regular retail pricesestabliahcd by the company, and to deal only in its machines. After 15 machines (which have been paid for) were delivered, W. died. Held, that his undertaking was personal to himself, and the duty of further performance did not devolve on the administratrix of his estate.
At Law. Scire facias quare executionem non. Sur rule for judgment. S. W. Cunningham, for plaintiff. George G. Wilson, for defendant. AOHESON, J. Conceding that the relationship between the Howe Sewing-machine Company and T. T. Wherry was not that of principal and agent, it still remains to be determined whether the agreement of February 11, 1884, established between them anything more than a personal relation which the death of the latter dissolved. This is the controlling question. The agreement recites that the company has sold to Wherry 100 Howe sewing-machines for $2,500, and received in settlement his 11 specified notes, running from 6 to 16 months; the company stipulating to accept, on or before the maturity of said notes, the amount due thereon in notes taken in payment for sewing-machines sold by Wherry, on certain conditions, one of which is that the notes so applied shall be drawn to his order, and the prompt payment of the same guarantied by him; and the company agrees to ship to Wherry a specified number of the said machines monthly, beginning with F'ebruary and ending with December, 1884. Then fol. low these provisions:
"The said T. T. Wherry agrees If< If< If< to sell the said machines at the regular retail prices established by said the Howe Sewing-machine Company in the following territory, viz., Indiana, Pa.; and, further, '" If< 'I< that he will not sell or deal in any other machine but the Howe."
Wherry died on April 26, 1884. Fifteen of the machines had then been delivered, and they have been paid for. Did the contract, in so far as as it remained wholly executory at the time of Wherry's death, survive against the administratrix of his estate? This is quite unlike the case of Wentworth v. Cock, 10 Ado!. & E. 42, in which it was held that the vendee's administrator was bound to receive and pay for