De Bary v. Souer

• Decision Date: 24 April 1900
• Docket Number: 859.
• Citation: 101 F. 425
• Parties: DE BARY et al v. SOUER.
• Court: U.S. Court of Appeals — Fifth Circuit

101 F. 425

DE BARY et al v. SOUER.

No. 859.

United States Court of Appeals, Fifth Circuit.

April 24, 1900

John D Rouse and Wm. Grant, for plaintiff in error.

J. Ward Gurley, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and BOARMAN, District Judge.

BOARMAN District Judge.

This suit is against L. J. Souer, who is the collector of internal revenue at New Orleans, La. It is to recover from him the sum of $100, with interest and costs. Plaintiffs allege that the said Souer, as such collector, assessed against them, as wholesale liquor dealers at New Orleans, La., a special tax of $100 for the year ending June 30, 1899, which they paid under protest to said Souer, collector. Plaintiffs allege that said assessment and collection of said sum was without authority in law, and they were in no way liable therefor. They allege, further, and the transcript shows, an admission by defendant, Souer, of this allegation, that they appealed in vain to the commissioner of internal revenue to have the said sum returned to them. Section 3244 of the Revised Statutes, under which the collector assessed provides 'that wholesale liquor dealers shall each pay $100. Every person who sells, or offers for sale, foreign or domestic distilled spirits, wines or malt liquors, * * * in quantities not less than five wine gallons at the same time shall be regarded as a wholesale liquor dealer. ' The contention of the plaintiffs in error was that they were importers of wines and liquors, and, as such, carried on the business of a wholesale liquor dealer at New York, where they paid annually the special tax imposed on such business by the revenue laws; that they never carried on such business in the city of New Orleans, nor in the state of Louisiana; that they never had an office or any place of business in the said state; that they never had any agent therein authorized to sell their goods, or to offer them for sale; that they never, in said city or state, sold or offered for sale, any foreign or domestic distilled spirits, wines, or malt liquors. In further support of the contentions of plaintiffs in error, they called two witnesses, the first being a member of the firm of Frederick De Bary & Co., to show that they had paid the government a wholesale liquor tax for carrying on business in the city of New York for the year ending June 30, 1899; that said firm did not, since June 3, 1895, either sell, or offer to sell, in the city of New Orleans, any foreign or domestic distilled spirits, wines, or malt liquors in any quantities; that they imported wines and liquors at the port of New Orleans, which they caused to be stored in a warehouse, and that, when sales were made in New York by the New York office direct to the trade at any place in the United States, deliveries of such goods were made to purchasers thereof on orders from the New York office to the warehouse people in New Orleans, with whom the imported goods were temporarily stored. Plaintiffs in error further offered the testimony of the warehouse keeper himself, at New Orleans, to show that they stored their goods with him since August, 1895, but that his (the warehouseman's) connection therewith was to enter the goods when imported, store and deliver them, or ship the same, as ordered by plaintiffs, in accordance with sales made by the plaintiff's firm at New York; that the warehouseman himself never sold, nor offered to sell, or never had any authority to sell, any of plaintiff's goods so stored with him; that the plaintiffs never had any place of business in New Orleans, or any agent there authorized to sell, or offer to sell, their goods. The defendant in error offered several witnesses to show a condition of things adverse to the state of case shown by the testimony of plaintiffs in error. Counsel for the plaintiffs in error asked the judge to charge the jury as follows: 'That unless the jury shall find from the evidence that the plaintiffs either sold, or offered to sell, foreign or domestic distilled spirits, wines, or malt liquors, in quantities not less than five gallons at the same time, in the city of New Orleans, they must find a verdict for the plaintiffs for the amount claimed. (2) If the jury shall find that the plaintiffs accepted, at their New York office, orders for their goods, and directed their delivery from a warehouse in New Orleans, then the sale thereon was made in New York, and not in New Orleans, and they must find a verdict for the plaintiffs for the amount claimed.'

The defendant in error sought, in the trial court, to contradict the material testimony by which plaintiffs in error showed that none of their liquors were sold, or offered for sale, at New Orleans. The trial judge, proceeding on the theory that there was no conflict on the issues of fact, refused the charges tendered by the plaintiffs in error, and directed a verdict for the defendant in error. The refusal to give the two charges cited above is assigned as error.

The undisputed evidence, all of which we find in the transcript seems to fully sustain the contention of plaintiffs in error that they never sold, or offered for sale, any of the wines or liquors which they kept on storage in the public warehouse at New Orleans; that they had their place of business in New York, where they entered into and made all the contracts for the sale of liquors and wines held on storage in the city of New Orleans; and that the liquors on storage in New Orleans, and so sold by them, were delivered by the warehouseman to the purchasers on orders in their favor. It was further shown that the said liquors, on their arrival at New Orleans, were often not put in the warehouse, but delivered to dealers, who had purchased them at New York, from the steamship landings; that the warehouseman delivered the goods to such purchasers in the original packages, and they never had an agent in New Orleans authorized to offer for sale, or to sell, the goods held for their...