270 F2d 35 Pacific Gamble Robinson Co v. United States

270 F.2d 35

PACIFIC GAMBLE ROBINSON CO., a corporation, Appellant,
v.
UNITED STATES of America, Appellee.

No. 15818.

United States Court of Appeals Ninth Circuit.

June 30, 1959.

Ryan, Askren, Mathewson, Carlson & King, Daniel C. Blom, Laurance S. Carlson, Seattle, Wash., for appellant.

Charles K. Rice, Asst. Atty. Gen., I. Henry Kutz, Helen A. Buckley, Lee A. Jackson, Attys., Dept. of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., Seattle, Wash., for appellee.

Before POPE, Chief Judge, and STEPHENS, FEE, CHAMBERS, BARNES, HAMLEY, HAMLIN and JERTBERG, Circuit Judges.

PER CURIAM.

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1

The opinion in Fisher Flouring Mills Company v. United States, 9 Cir., 270 F. 2d 27, is adopted as the opinion of the Court in this case.

2

Since the bulk of the shipments in controversy in the instant case were paid for by draft on a bank in the United States, although delivery thereof was made in Canada, we hold such payments were not as a matter of law made "within the United States." The established commercial usage of this country and Canada is that these payments were made in Canada whether the banks upon which the drafts were drawn were situate in that country or this. Unquestionably, the actual intent of both the shipper and the railroad conformed thereto. The Court of Claims, by a divided court, held the opposite in Kellogg Company v. United States, 133 F.Supp. 387, 132 Ct.Cl. 507. The Supreme Court denied certiorari.

3

We have been admonished that denial of certiorari does not indicate a leaning one way or the other as to the questions involved in the opinion sought to be reviewed. The determination of the Court of Claims might have been upon the facts. There is no such finding of fact in the case before us.

4

Reversed.