M.&E. Solomon Tobacco Co. v. Cohen

Decision Date20 March 1906
Citation77 N.E. 257,184 N.Y. 308
CourtNew York Court of Appeals Court of Appeals
PartiesM. & E. SOLOMON TOBACCO CO. v. COHEN et al.

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by M. & E. Solomon Tobacco Company against Benjamin F. Cohen and others. From an order of the Appellate Division (88 N. Y. Supp. 641,95 App. Div. 297), reversing a judgment for plaintiff, defendants appeal. Reversed.

The trial court found that on the 10th of June, 1890, the defendants sold to the plaintiff 37 bales of Sumatra tobacco at $2.25 a pound, including estimated duty, pursuant to a written contract made for and in behalf of the defendants by their duly authorized brokers, of which the following is a copy:

‘New York, June 10/90.

‘Sold to M. & E. Solomon Tob. Co.

‘For account of S. Auerbach & Co.

‘Terms: Duty cash 70c. If appraised at less diffce. to be allowed $5,000. 4 & 5 mos. -Balance less discount for unexpired time. All to be taken in five months.

‘37 bales Deli. NY-K SLI.

‘Examined and accepted at $2.25.

‘Maurice Eller & Son, Brokers.’

The tobacco, recently imported, was in a bonded warehouse, and the duty thereon had not been fixed, for there had been no appraisal. The sum of 70 cents a pound was arbitrarily agreed upon by the parties at the time of the sale as the probable maximum of duty upon said tobacco, and, as the trial judge found, ‘It was expressly agreed in the aforesaid contract that if the tobacco should be dutiable at a less sum the difference should be allowed to the plaintiff.’

Shortly after the contract was made the tobacco was appraised and the duty collected at the rate of 61 cents per pound, which was fixed by an erroneous and unlawful method of classification. The difference of 9 cents between the estimated rate stated in the contract and that fixed by the collector of the port of New York was allowed to the plaintiff, which, between June 16 and December 1, 1890, paid the defendants for the tobacco substantially in accordance with the terms of the contract. The plaintiff, between said dates, upon withdrawing the tobacco from bond in installments, paid the defendants on each occasion the sum of 61 cents per pound as and for the duty fixed by the collector, said payments amounting in the aggregate to $3,832.63. Upon receiving said amount of duty from the plaintiff the defendants paid the same to the collector, who thereupon released the tobacco, which was delivered to the plaintiff. All of said duty was paid by the defendants to the collector under the protest that said tobacco was not lawfully dutiable at the rate of 61 cents per pound, and that said rate had been fixed by an erroneous and unlawful method of classification. Thereafter such proceedings were had that said protest was sustained, the duty upon the tobacco was reduced, and on December 30, 1899, the collector refunded to the defendants, of the duty so paid as aforesaid, the sum of $1,311.50, of which they paid 50 per cent. to their attorney for the collection thereof. The trial court found that on the 30th of December, 1899, the defendants had received to the plaintiff's use the sum of $655.75, which they refused on due demand to pay to the plaintiff. No material fact was found except as thus stated. Judgment was ordered in favor of the plaintiff for the sum of $655.75, with interest thereon from the date of demand. Upon appeal to the Appellate Division the judgment was reversed and the plaintiff appealed to this court.

Gray, Haight, and Chase, JJ., dissenting.

Louis Marshall and Abraham Benedict, for appellant.

B. F. Einstein, for respondents.

VANN, J. (after stating the facts).

The question presented for decision is what did the parties mean by their brief memorandum in view of all the circumstances surrounding them when they made it? The question is close, for the courts below divided in judgment upon it and we are compelled to decide by the vote of a majority. The parties might well have been more explicit in their contract and not have left to implication that which could have been expressly stated by the use of one or two additional words. It is not for us, however, to criticise but to decide, and in announcing our decision in favor of the plaintiff we state the following as, in brief, the grounds of our judgment.

It would naturally be expected that the plaintiff, who furnished the money to pay the duty, would be entitled to any overpayment exacted by the agents of the government, rather than the defendants, who, although making the payment,in fact did not use their own money for the purpose. No one was really interested in the amount paid except the plaintiff, upon whom the burden of the duty fell, although the defendants formally handed the money over because the government would accept it only from the importer. While the sale was for the nominal sum of $2.25 per pound, the real purchase price was that sum less the estimated duty of 70 cents to be advanced by the plaintiff in cash for the sole purpose of paying the duty. It was expressly conceded at the trial that the ‘70 cents entered into the price of $2.25,’ and that ‘$2.25 per pound means the price of the tobacco per pound including the 70 cents duty.’ The sum of 70 cents, however, having been arbitrarily agreed upon merely for convenience, was by the terms of the contract subject to reduction either exclusively on the basis of the appraisal made by the collector, or by the final and only legal appraisal which was made in effect through an...

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3 cases
  • IDEAL CEMENT COMPANY v. United Gas Pipe Line Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • November 16, 1960
    ...U.S. 316, 65 S.Ct. 298, 89 L.Ed. 264; Casey Jones, Inc. v. Texas Textile Mills, 5 Cir., 1937, 87 F.2d 454, 456; Solomon Tobacco Co. v. Cohen, 1906, 184 N.Y. 308, 77 N.E. 257; Wayne County Produce Co. v. Duffy-Mott Co., Inc., 1927, 244 N.Y. 351, 155 N.E. 5 Reported in 176 F.Supp. 748. 6 See ......
  • Wayne Cnty. Produce Co. v. Duffy-Mott Co. Inc
    • United States
    • New York Court of Appeals Court of Appeals
    • February 23, 1927
    ...for the plaintiff is well sustained by the decisions. Friend v. Rosenwald, 124 App. Div. 226, 108 N. Y. S. 701;Solomon Tobacco Co. v. Cohen, 184 N. Y. 308, 311,77 N. E. 257. There have been rulings to the contrary. Heckman & Co. v. I. S. Dawes & Son Co., 56 App. D. C. 213, 12 F.(2d) 154;Kas......
  • Lucas v. Panos, 26385.
    • United States
    • Washington Supreme Court
    • May 19, 1937
    ... ... M. & E. Solomon Tobacco Co. v. Cohen et al., 184 ... N.Y. 308, 77 N.E. 257; Friend ... ...

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