STANDARD . SUGAR REFINERY II; CAILTAN.O.

279

"':U''is the uut)rofcourts,inapplyingsuch a statute,.evenwhere the Janguage is inexplicit, t6 give it such constructionaa will effectuate the legislative will. "", . The foot that the coupon after maturity may or may not bear est, or the further fact that the coupon may be cut from the bond., and, after maturity, be suedllpon separately as a negotiable instrument, not affect its character as'cinterest when sued upon in connection with the bond towhieh Wis ·attached. In the instance of a simple promissory fdrannualpayments of interest an action will lie for,therecoveryof annual accrued interest,ihdependentof the debt. Stoner v. Evam,' ..4ll1·. Bu,t ,lf theholder.ofsu:eh"a note j;lQould not sue thereon the maturIty of the prineipal!debt,there,could be heard no debate on the propQsition that under the fedemlstatutein question the' juri$diction of the court sQould not bedetermined py the amount of the principal debt.' It lEi a non 8e<juuur,as cbrit'ended'by the learnedcbunsel foi-plaintiff, that if this demurrer be sustained' rio the validity of 'n1unicipalbonds could; ever be had in a Jederal ,COuf,tuJ;ltiIAhebonds thertlselveshad matu'l'Qdj 'and in many cfisesalarge:partofthe coupons in the mean time be barred by limitation." .'£he· positiopniain.tained upon .the opinion i,n City v.Lam.80n,8Wpra, that: the conpons "are 'substantially but copies from the body of the I bpn&.il1'il'especUQ,the in,terest,".-,..thatthereis r'butone contract **': contains the furtber, prClposition .that, in ao:actLon . concerning the vaIidityofthe coupon, the validity·of,thebond.itselUs And, of cOllsequence, an adjudication on the coupon would ,conc!udeanycontrovetsy as to the validity or>invalidity of the bqnd,in ,an action. between,the same, parties on the Isame:issues of fact. OromweU v.' County,a/Sac, 94 U. 8.;359. Nothing said' orldecided ,here has any reference to the right to· supplement the' principaL amount of .the, bond on some other -with coupons owned by the suitor representing bond in 'order to give jurisdiction to the It follows that .the demurrer is sustained.
r(

':,

STANDARD SUGAR REFINEllY17: CASTANO

etal.

"

SAiLB-Co1'lSTRUOTION OF, CONnl,A,CT.

, At Law. . , ". . .' . . ,. From the agreed statement of facts, it 'R,PPElarB is a cCQrpollatUoI) engageq! in th;e. business QJ refiningsu,garatJ30stoJil,and,that

, A contract for the sale of a cargo of from 700 to 800 tons of sugar, to be shipped ,. from a Certain port, is f1ilfllled \)y the delivery of 'Onl,y'iOO ·tons, though' shipped from said port as part of a cargo of toDIIe' ,: i; ,"

. -

,

!80,

FEDERAL REPORTER,

vol. 43.

,

defendants Bre merchants carrying on business at Cienfuegos, in the island of Cuba,' under the name of Castano & Intriago. On March 28, 1889, a contract was made at Boston, on behalf of the defendants, by their agent, duly authorized, for the sale to the plaintiff of a cargo of sugar, a copy of which contract here follows: , 1, . " BOSTON, March 28, 1889. "Sold for Recount of ¥essrs. Castano & Intriago, to Standard Sugar Refinery,cargo 70Q-800 tons of Centrifugal sugar, April clearance by sail from Cienfllegos,for Boston, 'atAt pel' lb., cOllt and freight. basis, 96 test. addfor each degree above, Or deducting 1-20 ct. ing 1-32 ot.p,er Ib, pel' lb. degree below 96 test! fractions in proportion. In. VOIce welght,marme Insurance, to be provided by purchasers. Payment by three-days sight drafts against docurrients, to be sampled on landing, as usual, bYbuyefs and seller's samples, and' the average of two Boston chemists' tests,',thesesamples to· be the basis .of.settlement.Shipment by firstclass vessel; "JAMES H. .,SHAPLEIGH & Co., Brokers, 32CimtraIBtreet." . .' . .. . The defendants, ripon .being advised at Cienfuegos of the making of this contract,proceeued. to· make inquiry for a vessel suitable for the shipment of the sugars sold. There was I\t the time no disengaged vessel in port, and ,he was informed that vessels were very difficult to ob· tain at the: Windward islands, and, not finding upon this inquiry a suitable vessebof:a ,Capacity of between 700 and 800 tons Of sugar, he, on April 2, 1889, rechartered from one Fred de Mazarudo, of Cienfuegos, the brigantine (Motley, which was of a capacity greater than 800 tons. Soon after the making of the contract, the price of sugar began to rise. The detel'ldantput on board of the Motley 5,979 bags of sugar, weighing 1,884,121 pounds net, or over 841 tons of 2,240 pounds, the gross weight of which exceeded 849 tons of 2,240 pounds; and on the 26th day of April. 1889, took from the master a bill of lading, in which Messrs., ;Perkins' & Welsh, a firm of commission merchants doing business in,NewYork,his agents in the United States, were named as consignees, at Boston, of said sugar. In the letter of May 7, 1889, from Perkins & Welsh. to the plaintiff, they say that, owing to. the scarcity of tonnage, it was found impossible to secure a vessel conveying between 700 and 800 tons, and they tender 700 tons at the contract price in fulfillment of the contract. This offer was aleclined by the plaintiff, and considerable correspondence passed between the parties. Subsequently Mr. Perkins Bostqn,and there received the cargo of the Motley. Interviews took' place between him and the representatives of the plainoLthe .matter was reacb,ed, between them; Mr. tiff, but no Perkins, in accordance with the defendants' instructions, insisting upon his. tender 0f709 tons of the sugar at the contract price, in ·full settle,ment of the d'e{enGg.pts' liability under the contract of March 28th, and the plaintiff declining so to receive it. It was finally arranged between them that the plaintiff should accept the 7.00 tons offered, without prejudice to its right, if any, to demand the delivery of the remainder of the cargo,' or anY' part of it, at the price named in'said contract, and said 700 tons were sOl'eceived and paid for by the plaintiff; and there, . .

. .

stUART ".BARNES.

281'

upon the plaintiff brought this action. The remainder of the cargo, amounting to 316,122 pounds, was sold by Perkins & Welsh, acting for the defendants, to a third party, at 5 cents per pound, which was the market price of the sugar in Boston at the time the plaintiff claims it was entitled to receive the same. Benjamin Wadleigh, for plaintiff. Melville M. Weston, for defendants.
COLT, J., (after stating the facta as above.) The only question in this case is whether the plaintiff is entitled to recover any damages for breach' of the contract which was made. The contract called for a cargo of from 700 to sao tons of sugar. It appears that 700 tons of sugar were delivered to the plaintiff at the contract price. Ifth:e defendants had chartered a; smaller vessel, and delivered a cutgo of 700 tons to the plaintiff, there .can be no doubt but that they had fulfilled their contract. Are the defendants obliged, under the circumstances, to do more than this? If the price of sugar had fallen instead of advanced, the plaintiff might have declined to receive any part of the cargo, on the principle that a cargo means the entire load of the ship which carries it, and that a; contract for a cargo of from 700 to 800 tons is not performed if more or less than that quantity is delivered. But, the price of sugar having advanced, does this circumstance permit the plaintiff to call upon the defendants for 800 tons of sugar at the contract price? I am of opinion, as the defendants might have performed their contract by shipping a cargo of 700 tons, that in assessing damages for a breach of the contract they mav select that alternative which is the least burdensome to themse1;es. "Let judgment be entered for the defendants.

STUART ". BARNES.

(OirC'Uft Oourt,

E.,P. Pennsywan1.a.

April (,1890.)

1.

INTERNAL RBVENUE-DISTILLED SPIRITS-EXCESSIVE TAX-RECOVERY.

Spirits were manufactured and placed in bond prior to July 20, 1868. Upon with· drawal, on July 26, 1869, plaintiff was required to pay taxes on 18.86 gallons more than the number of proof gallons, through the reckoning by the collector of eaoh fraction of a gallon left over in :each package, after the number of whole gallons therein ,had been counted, as a whole gallon. Held, in view of Act July 20,1868, (15 St. 125,) plaintiff could not recover the amount of the taxes collected on these extra gallons. An amount awarded by act of congress to reimburse a olaimant for excess of taxes paid does not, unless especially so stated, give claimant a right to recover interest from the time of the illegal exaction. A suit was brought more than 18 years afterwards to recover excess of tax paid through the collector's rating' certain fractional parts of gallons of spirits as whole gallons. Pripr to suit plaintiff had made a claim for tax charged on spirits lost by evaporation whl1e in the warebouse, but not for, this alleged excess. Held, plaintiff had not complied with provisions of Rev. St. SS 3226-3228, aud his claim was barred. '

9.

SAME-ALLOWANCE BY ACT 011' CONGRESS-INTEREST.

8.

SAME-LIMITATIONS.