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.
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. '
SAME-ALLOWANCE BY ACT 011' CONGRESS-INTEREST.
4.., SJ.Mll-EFJ1IO',l' .Q;n UliDER ACT OP, CONG;RFlSS. .." . . . ,,' . Amounts pafdtbH:lUgh :Act ConI!'; July 26,18S6,were not payments on 8OOOUD't but'were in of the Clallnsprefl6Atell, " '. ,
At Law. This was a suit brought for the rec.overy of $250.40, with interest from June 26,1869, alleged to have been illegally collected by the defendant's testator, who had been during his life-time a collector of internal revenue for the eastern district of Pennsylvaflia. It appeared upon the trial that rthe plaintiff .was, a dealer il,l distilled spirits, some of which, in the United States bonded warehouse,were oWQed by him priorto April 14; 1869, and withd:raW:D for .sale and ,collSoumption by bim, on June 26,1869. They had, b.een manufactured and placed in bond"pl'ior to July ,20, 1868, and upon the plaintiff wal:j required to pay a tax upon an amount,.of spirits in eJliOOSS of the' amount. withdrawn as showt:U.>Y actual gauge at, 'the time Cf'f the withdrawal. The number of packages witMrawn was 460, as it w8.!lprOVed upon the whole 'quantity ofspirits withdrawn was 1,819.14 proof galloWt,'or 1,838 package or taxable gallons. The SUIn of62 7-30 cents per.gallon,reckoningeatlh fraction ofagallon in l'la,ch package as a whole levied; and the. total am.ount of tax ,exacted and collected ,whleh amollutwas m.adeup of the following items: ,'Ofactllalspil'its withdr8wn.:l;l::l19;14 gallons; at 62 7"30 cents, $1,132 11 COlllputed aswhHles r 13.86. gj111ons, at
'388.54 gallons, at 62 7·30 cents,
8 62 241 78
Total, ,;,. . .. $1,382 51 It appeared in evidence that the original claim for the allep:ed illegal collection was made August 3, 1871, for $241.78; and upon October 3, 1871, it was returned to the collector of internal revenue for this district at the request of the plaintiff, ,and an atnended claim for $241.78 was thereupon filed upon Marc1i20,1878, which upon February 24, 1883, was rejected, and notit;ied. ,SubsequeQtly, upon April 30, 1883, at the request of the plaintiff's attorney, the claim was reopened, and Decembet" 1884,sgain rejected·. , Upon March 18, 1885, how/:ivei, it alldupon April 28, 1886, again rejected. Upon the trial, also, the act of congress dated July 26, 1886, (24 St. at Large,c. evidence, showing that the plaintiff's claim for $241.7$ was favorably considered, and a receipt by his attorney for that amount was .also proved, qated .1,7" and this suit was broughtAprl125,1887.: It appeared, also, that: the claIm filed March 20, 1878,for$241.78iwaslliOOn form known as "Series 6, No. 14," for taxes improperly paid, and set out the facts hereinbefore indicated, amd ,claimed· that the,taocwas illegal to the amount stated because thEl plaiiltiffhad '}jeen tax'e\'l.' for a quantity whichwas.not actually withdmwn, but which was ,lost by evaporation ot leakage while in the warehouse. . It was ehowii,' also,. that this was the only claim presepted by
t!te plaintiff tothehlternal revenue department in pursuance of the proyisions ofRev.St.§§ 3226-3228; and upon the trial a special plea was filed on behalf of 'the defendant, that, to entitle. the,above plaintiff to maintain the ahove suit, appeal was not dulyma:1e tothe c0mmissioner of internal revenue according to law, and ihat it was not duly brought :Within the period of time allowed thereby. On behalf of the plaintiff the following points were submitted: "(I) That the spirits withdrawn by tbe plaintiff June 26.1868. were manufactured and placed in the United States bonded warehouse prior to July 20. '1868. and plaintiff was onlyliable to pay a tax on the 'number of gallons of spirits then actually witbdrawn by him from bonded warehouse. to-wit, 1.819.14 proof gallons, on which the tax: was $1,312.11, and that defendant's testator lInlawfully exacted in excess thereof the sum of $250.40 as a tax on spirits which had originally beeu bonded, but which had disappeared by leak.. age, evaporation, or otherwise." Affirmed. "(2) That at common law the plaintiff became forthwith entitled to bring an action against the defendant's testator in his individual capacity, and not as a United States collector of internal revenue. which right was suspended by the act of congress until plaintiff had appealed from the illegal tax to the commissioner of internal revenue, and his appeal was finally rejected by the commissioner of internal revenue April 28, 1886." Refused. "(3) '£hat. upon the final rejection of the plaintiff's claim by the commissioner of internal revenue, the plaintiff's right of action against the defendant's testator in his individual capacity revived, and his action must be commenced within one year thereafter, and this action was brought within the statutory time;" Refused. "(4) That the meas ure of the liability of the defendant's testator is eth amount of the tax illegally exacted by him from the plaintiff, to-wit, $240.50. with interest at six per centum from .Tune 26,1869, to the date of the verdict, subject to a credit of $241.78." Refused. "(5) That the sum of $241.78 paid plaintiff on tbe 17th day of August, A. D. 18l:l6, was not a payment of his claim made by the appeal to the commissioner of internal revenue under the acts aforesaid, and that the said claim had previously been rejected, and was not pending in the treasury department at'that time. 'The same was a voluntary payment by the United States, without any conditions, of a part of a sum of money then due to the plaintiff. not from the United States, or in recognition of the plaintiff's rejected claim, but from the defendant's testator in his individual capacity. This sum was paid and recei ved expressly on account. II Refused. I "(6) The plaintiff may and has elected to apply this sum as a payment on account of the sum of $507.83, to-wit, $250.40, the excess of tax. and $257.43, interest thereon from June 26. 1l:l69, to August 17.1886, which was upon that day due to plaintiff by defendant's testator, and the plaintiff is entitled to a verdict for the balance then due, to-wit, $266.05, with interest thereon to date." Hefused. , "(7) The present action is not against the United States, nor isit an action against the defendant's testator in his capacity of a United States collector of internal revenue; but the same is an action against him in his individual capacity, and is to be governed by the same rules as other actions between private citizens." Refused. "(8) That the plaintiff's claim against the United States was not reopened and allowed after April 28, 1886." Affirmed. "(9) That the commissioner of internal revenue bad no jUdicial functions to pldorm under the private act of .July 26, 1886. and his duty thereunder
and was limited to ascertaining what excessive tax had the plaintiff; and tQis inquiry, and the payment of $241.78 tothe plaintiff, we're solely by virtue of the provisions of the said private act of congress." Affirmed. On behalf of the defendant the following points were submitted: "(1) From the plaintiff's claim, 8S set out in the bill of particulars, of $250.40, you must deduct the amount of $241. 78 paid him upon August 17, 1886, uuder the act of July 26, 1886, (24 St. c. 783;) and in this suit he cannot recover any interest whatever upon the said amount of $241.78. "(2) The.act of July 26,1886, under which the payment of $241.78 was made to the plaintiff, states that it was a refund of taxes exacted and paid on distilled spirits.in exceslil of the quantity withdrawn from the warehouse, and the act did not provide for thepayment ofinterest; and your verdict in this case should tie for the defe,ndant. "(3) The plaintiff cannot recover an amount of taxes alleged by him to have been illegally assessed by counting fractions of gallons alil whole gallons. The act of congress of July 20,1868, (15 St. 125,) provides that a fractional part of a ganon in of the n umber of gallons in a cask or package should be taxed as a gallon; and )'ollr verdict upon that part of the plaintiff's claim in this suit should be for the defendant. , , "(4) The plaintiff failed to prpsent his claim to the commissioner of internal revenue for refunding the alleged excess of taxes upon fractions of gal. Ions in the manner, and within the period of time, reqnired by law, and therefore he cannot recover in .tllis suit. "(5) The claim preserited by the plaintiff in this suit was included in the payment made to him under the provisions of the act of July 26, 1886, (24· St. c. 783,) and therefore he cannot recoyerj and your verdict should be for the defendant. ' "(6) Your verdict should be for the defendant." J. W. M. Newlin, for plaintiff. William Wilkins Carr, Asst. U. S. Atty., and John R. Read, U. S. Atty., fordefendant.
McKENN;AN, J., (cha:rgingjury.) Although I do not give you any binding instructions to that effect, yet, in the judgment, of the court, under all the evidence in the case, the defendant here is entitled to a verdict. As the case is presented to you, in the judgment of the court, yon could only find· a verdict properly in favor of the defendant.
The jury thereupon rendered a verdict for the defendant.
D'ESTRINOZ v. D'ESTRlNOZ
(Otrcuit Cout't, E. D. Pennsylvania. AprilS, 1890.)
CUSTOMS DU'l'IES-CLASSll.'ICATION-MANUFACTURED TOBACCO.
A cigar-shaped bundle of tobacco of an extremely large size was classl1led"as manufactured tobacco. It was in evidence that it was used as an ornament in cigar dealers' windows, but that it could be smoked as a cigar. Held. that the fact of its capabilltv of being smoked does not altogether determine its character, and. if the principai utility of the article is for some other purpose. the article is to be as manufactured tobacco, if for the ordinary purposes of a cigar, as such.
At Law. This is a suit brought by Francisco R. D'Estrinoz to recover the sum of $525.35, alleged to have been illegally exacted by the defendant as a taxupon 6,5651- ponnds of tobacco, at eight cents a pound, the year 1886. It was shown that the plaintiff was not a manufacturer of .tobacco, and did not have a license therefor, bat was a mapnfacturer of cigars. The tax was levied at the rate of eight cents a pound as upon manufactured tobacco, under the provisions of sections 3362 and 3371, Rev. St., as amended. It was also shown on behalf of the plaintiff that the article was known as a "Jumbo "cigar, and bought, sold, and used in trade under that name. It appeared that it cc>uld be smoked as other cigars of smaller size, as the tobacco was laid without twist; that. the grade was inferior to that known as manufactured tobacco; and that they were not sold as such, but generaJly for the purpose of oroa· or as a novelty. Testimony was produced on the part of the defendant that the highest quantity of tobacco used in the manufacture of the ordinary cigar, as shown from the reports of the internal revenue department, is less than twenty-five ponnds of tobacco to the thousand, and that the highest quantity of tobacco used was from 35 to 55 pounds perthousllnd, and that the quantity of tobacco used in the article in question was much higher. John A. Ward, for plaintiff. Wm. Carr, Asst. U. S. Atty., and John R. Read, U. S. Atty., for deftmdant.
McKENNAN, J., (charging jury.) There is but a single question in this case, and it is not a very broad one, and, as you will deterinine the one question of fact involved in the case, the result of the cause will be determined by you. The plaintiff herp is a manufacturer of cigars, and obtained a license from the government to deal in cigars. He was charged by the collector of the district a certain sum of money on cigars manufactured by him, at the rate of eight cents per pound upon the certain number of pounds contained in an article which the collector classifies as manuJil.ctured tobacco, and which were claimed by plaintiff to be cigars, within the meaning of that term. The question is, were they cigars, as claimed by the plaintiff? If they. were, then the tax was erroneously assessed, and the plaintiff is entitled to re-