majority">By the Court, James C. Smith, J.

The variance between the complaint and the proof in respect to the time *473when the machines were delivered and accepted was properly disregarded by the court. It was not shown, or alleged by the defendant, that he had been misled by it, and the court in the exercise of its discretion, gave instructions to the jury which were equivalent to a direction to find the fact according to the evidence. This the court had power to do. (Code, §§ 169, 170.) By the disposition thus made'of the point raised, no substantial right of the defendant was prejudiced, and all ground for the motion for a nonsuit was removed.

The claim made by the defendant that Barber, Sheldon & Co. and not himself, were the real contracting parties, and that they had sustained damages by the plaintiff’s breach of the agreement, which the defendant claimed to recoup, was untenable. There was nothing in the body of the written agreement, or in the form of the defendant’s signature, to indicate that the obligation thereby created, was intended to be any other than a personal obligation on his part. That being the case, parol evidence was inadmissible to show that the agreement was in fact the obligation of Barber, Sheldon & Co. and that the defendant signed it as their agent. (21 Wend. 101. 1 Denio, 226. 11 Mass. R. 27. 21 Barb. 17. 40 id. 119.) It seems the rule would have been otherwise, if it had appeared in the body of the instrument, or from the signature of the defendant, that he was acting for Barber, Sheldon & Co. and intended to bind them and not himself. (Auburn City Bank v. Leonard, 40 Barib119, 136, and eases there cited by Johnson, J.) As the defendant, on the trial, did not claim to recoup any damages except such as had accrued to Barber, Sheldon & Co. by the plaintiffs’ alleged breach of the agreement, and as they were not shown to be parties to the agreement, the offer to prove such counter-claim was properly overruled.

The objections taken to the allowance of the additional duty under the act of congress remain to be considered. *474The act of congress, entitled “ an act to provide ways and means for the support of the government, and for other purposes,” passed June 30, 1864, (13 U. S. Stat. at Large, p. 270,) provides “ that every person, firm or corporation, who shall have made any contract prior to the passage of this act, and without other provision therein for the payment of duties imposed by law enacted subsequent thereto, upon articles to be delivered under such contract, is hereby authorized and empowered to add to the price hereof, so much money as will be equivalent to the duty so subsequently imposed on said articles, and not previously paid by the vendee, and shall be entitled by virtue thereof to be paid, and to sue for and recover the same accordingly.” (§ 97.) It is not questioned that the case in hand is within the provision above transcribed, and the only objections made to the allowance of the claim," are: (1.) That the tax has not been paid by the plaintiff. (2.) Congress has not power thus to vary the contract of the parties, and to direct that a tax assessed against the plaintiff, shall be paid to Mm by the defendant.

It is clear from the language of the act, that pre-payment of the duty by the vendor is not a requisite to the claim. By section- 94, the manufacturer is made liable primarily for the payment of the tax, and this liability makes his claim against the vendee as complete as if he had actually paid. The effect of section 97, is to cast this liability ultimately upon the party purchasing of the manufacturer. JSTo question is made of the power of congress to make the purchaser liable in the first instance, and exclusively, so far as he is concerned. Such is in substance, the effect of the law as it stands. It merely adds to the certainty of collection, and is but one of the means which congress had power to adopt, to accomplish the end designed. It is immaterial to the purchaser, whether the tax is imposed on him directly, or whether it is laid on the manufacturer *475in the first place, and then added to the price. The plaintiff was entitled to have the claim allowed him.

[Monroe General Term,September 2, 1867.

J. C. Smith, Welles, and E. D. Smith, Justices.]

There was no question for the jury, in the case. But the item for increased price of stock as fixed by the jury, under the direction of the court, seems to be larger than the proof warranted, by the sum of $33.08. If the plaintiff will deduct that sum from the verdict, judgment should be ordered for the balance, with costs; otherwise the verdict should be set aside, and a new trial ordered, costs to abide the event.

Ordered accordingly.

Citation profile

Relationships

How this case has been treated — in progress