Heckman & Co. v. IS Dawes & Son Co.

Decision Date05 April 1926
Docket NumberNo. 4310.,4310.
Citation12 F.2d 154,56 App. DC 213
PartiesHECKMAN & CO., Inc., v. I. S. DAWES & SON CO., Inc.
CourtU.S. Court of Appeals — District of Columbia Circuit

Morris Simon, L. Koenigsberger, and Eugene Young, all of Washington, D. C., for appellant.

Levi Cooke and G. R. Beneman, both of Washington, D. C., and William W. Armstrong, of Rochester, N. Y., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

ROBB, Associate Justice.

Appeal from a decree in the Supreme Court of the District, dismissing plaintiff's bill, seeking recovery of money alleged to have been paid under a mistake of law. The averments of the bill are in substance as follows: The Commissioner of Internal Revenue promulgated a regulation construing section 628 of the Revenue Act of 1918 (40 Stat. 1116 Comp. St. Ann. Supp. 1919, § 6161½d) as imposing upon manufacturers of cider a tax equal to 10 per cent. of the price for which sold. As such a manufacturer, defendant paid to the United States 10 per cent. of the price for which its cider was sold. Defendant sold a quantity of cider to the plaintiff, and added to the selling price the 10 per cent. thus paid to the United States. In Sterling v. Casey (C. C. A.) 294 F. 426, it was ruled that the act of 1918 did not authorize the imposition of a tax on cider, and this decision was acquiesced in by the Treasury Department. Thereupon defendant sought and obtained a refund of the cider tax paid by it. Plaintiff then unsuccessfully sought a refund from the defendant of the 10 per cent. involved. The bill alleges that the plaintiff "was compelled to pay said tax to the defendant, as otherwise the defendant would not have sold cider to the National Beverage Company plaintiff, and all other manufacturers took the same position. The National Beverage Company was forced to pay said tax or else to forego dealing in cider, which was a large and profitable portion of its business." It is further alleged that the money refunded to the defendant "constitutes a trust fund for the benefit of the plaintiff to the extent that it represents taxes paid by the National Beverage Company to the defendant."

The defendant, appellee here, contends that no trust relationship has been made to appear; that this merely is an attempt to obtain a decree for the payment of money. and hence that the suit should have been on the law side. Should we remand the case, with permission to transfer it to the law side, the right of plaintiff to recover would depend on the facts here appearing. It is apparent, therefore, that plaintiff's right of recovery, whether at law or in equity, may be determined now, and unnecessary delay and expense avoided.

The Revenue Act of 1918, as construed by the Treasury Department, imposed a tax on the manufacturer, not the dealer. The defendant, as such manufacturer, paid this tax. In selling to the plaintiff, it added to the selling price the amount of the tax, which plaintiff voluntarily paid in order to continue "dealing in cider, which was a large and profitable portion of its business." Defendant paid no tax for the plaintiff but for itself. The sale to the plaintiff was not induced by misrepresentation as to law or fact, nor was it the result of undue influence on...

To continue reading

Request your trial
35 cases
  • Smith v. Sparks Milling Co.
    • United States
    • Indiana Supreme Court
    • 2 Febrero 1942
    ... ... Milling Co., D.C.E.D.Mo., 21 F.Supp. 847; Lash's ... Products Co. v. United States, 278 U.S. 175, 49 S.Ct ... 100, 73 L.Ed. 251; Heckman & Co. v. I. S. Dawes & ... Son, Inc., 56 App.D.C. 213, 12 F.2d 154; Golding Bros ... Co. v. Dumaine, 1 Cir., 93 F.2d 162, 115 A.L.R. 664; ... ...
  • Shannon v. Hughes & Co.
    • United States
    • Kentucky Court of Appeals
    • 25 Junio 1937
    ... ... vendor. Lash's Products Co. v. U.S., 278 U.S ... 175, 49 S.Ct. 100, 73 L.Ed. 251; Acme-Evans Company v ... Smith (D.C.) 13 F.Supp. 356; Heckman & Co. v. Dawes ... & Son Company, 56 App.D.C. 213, 12 F.2d 154; ... Christopher v. Hoger & Co., 160 Misc. 21, 289 N.Y.S ... 105; Texas Company v ... ...
  • G.S. Johnson Co. v. N. Sauer Milling Co.
    • United States
    • Kansas Supreme Court
    • 10 Diciembre 1938
    ... ... The phrase ... 'passed the tax on' is inaccurate, as obviously the ... tax is laid and remains on the manufacturer and on him ... alone. Heckman & Co. v. I. S. Dawes & Son Co., 56 ... App.D.C. 213, 12 F.2d 154. The purchaser does not pay the ... tax. He pays or may pay the seller more for ... ...
  • State v. Standard Oil Co. of Louisiana
    • United States
    • Louisiana Supreme Court
    • 30 Mayo 1938
    ... ... phrase 'passed the tax on' is inaccurate, as ... obviously the tax is laid and remains on the manufacturer and ... on him alone. Heckman & Co. v. I. S. Dawes & Son ... Co., 56 App.D.C. 213, 12 F.2d 154. The purchaser does ... not pay the tax. He pays or may pay the seller more for ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT