Carter v. Slavick Jewelry Co., No. 5421.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtGILBERT, RUDKIN, and DIETRICH, Circuit
Citation26 F.2d 571,58 ALR 1043
Docket NumberNo. 5421.
Decision Date02 July 1928
PartiesCARTER et al. v. SLAVICK JEWELRY CO.

58 ALR 1043, 26 F.2d 571 (1928)

CARTER et al.
v.
SLAVICK JEWELRY CO.

No. 5421.

Circuit Court of Appeals, Ninth Circuit.

June 4, 1928.

Rehearing Denied July 2, 1928.


26 F.2d 572

Shepard Mitchell, M. B. Silberberg, and Alex W. Davis, all of Los Angeles, Cal., for plaintiff.

Samuel W. McNabb, U. S. Atty., and Emmett E. Doherty, Asst. U. S. Atty., both of Los Angeles, Cal., for defendants.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

The Slavick Jewelry Company is engaged in selling jewelry at retail under a plan by which it delivers possession of the merchandise sold, but retains title until the full purchase price is paid. During the period from December, 1920, to December, 1924, it made approximately 700 of such sales, for the gross aggregate price of $72,746.80, and actually received on account thereof the aggregate sum of $49,115.55. In no case was the purchase price paid in full; in some instances the larger part remaining unpaid, and in some the balance being trifling, as, for example, $1 on a $60 or $75 sale, and $1.75 on an $85 transaction. At divers dates during the period mentioned the several balances, aggregating $23,631.25, were charged off to profit and loss, and the accounts closed, for what reason is not disclosed.

Section 905 of the Revenue Acts of 1918 and 1921 (40 Stat. 1124, and 42 Stat. 293 Comp. St. § 6309 4/5f), provides for a tax upon jewelry "when sold by or for a dealer * * * equivalent to five per centum of the price for which so sold," and acting thereunder the Commissioner of Internal Revenue assessed a tax of $3,637.34, which is at the rate of 5 per cent. computed upon the gross contract sales price. The jewelry company, having paid this under protest and failed in its efforts to obtain a refund, brought this suit for a recovery. Holding that the assessment was valid upon the moneys collected, but to that extent only, the lower court entered a judgment in its favor for $1,181.56, from which both parties appeal.

It is undoubtedly true, as the jewelry company contends, that in its primary meaning the term "sale" imports a consummated transfer of title from one person to another for a money consideration. But it is equally true that in private contracts and public laws it is not infrequently employed to characterize transactions which do not effect an absolute transfer. Illustrative are the following cases: Crall v. Commonwealth, 103 Va. 855, 49 S. E. 638, 640; Id., 103 Va. 862, 49 S. E. 1038; City of South Bend v. Martin, 142 Ind. 31, 41 N. E. 315, 29 L. R. A. 531; Watson v. Brooks (C. C.) 13 F. 540; Baton v. Richeri, 83 Cal. 185, 23 P. 286; Shainwald v. Cady, 92 Cal. 83, 28 P. 101; Pettenger v. Fast, 87 Cal. 461, 25 P. 680; Smith v. Mariner, 5 Wis. 551, 581, 68 Am. Dec. 73; Houston E. & W. Ry. Co. v. Keller, 90 Tex. 214, 37 S. W. 1062, 1063; Rice v. Mayo, 107 Mass. 550; Humphries, etc., v. Smith, 5 Ga. App. 340, 63 S. E. 248, 249; State v. Betz, 207 Mo. 589, 106 S. W. 64, 66.

Even in treatises on Sales the subject of so-called conditional sales is sometimes treated. See, for example, Mechem on Sales, § 558 et seq. Upon the street and in the commercial world, such is common usage. Indeed, we have no other single word descriptive of transactions such as are here involved. One who procures an automobile or a piece of furniture upon the installment plan, where, as here, the dealer retains title, is commonly thought and spoken of as a purchaser, and when the dealer so disposes of merchandise it is treated and regarded as a sale, and moneys received on account thereof as sales receipts. In the absence of something in the act to suggest that Congress intended the term to be understood in its restricted primary meaning, we must assume it was used in the broad sense in which it is commonly understood. Measurably in point is the case of Earl C. Anthony v. United States, 57 Ct. Cl. 259.

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2 practice notes
  • Olympic Motors Inc. v. McCroskey, 28722.
    • United States
    • United States State Supreme Court of Washington
    • December 17, 1942
    ...Co. v. Dunckel, 296 Mich. 225, 295 N.W. 624; Bigsby v. Johnson, Cal.Sup., 99 P.2d 268. See, also, Carter v. Slavick Jewelry Co., 9 Cir., 26 F.2d 571, 58 A.L.R. 1043. Counsel for appellant contend that if the legislature had intended to impose a tax upon the deferred installments of conditio......
  • McCready v. Southern Pac. Co., No. 5270.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 2, 1928
    ...understand, it is not disputed that, being by virtue of his employment in privity with the contractor, plaintiff's right to be and to work 26 F.2d 571 in and about the unfinished unit was of equal dignity to that of his employer, and that the duty of the defendant to refrain from subjecting......
2 cases
  • Olympic Motors Inc. v. McCroskey, 28722.
    • United States
    • United States State Supreme Court of Washington
    • December 17, 1942
    ...Co. v. Dunckel, 296 Mich. 225, 295 N.W. 624; Bigsby v. Johnson, Cal.Sup., 99 P.2d 268. See, also, Carter v. Slavick Jewelry Co., 9 Cir., 26 F.2d 571, 58 A.L.R. 1043. Counsel for appellant contend that if the legislature had intended to impose a tax upon the deferred installments of conditio......
  • McCready v. Southern Pac. Co., No. 5270.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 2, 1928
    ...understand, it is not disputed that, being by virtue of his employment in privity with the contractor, plaintiff's right to be and to work 26 F.2d 571 in and about the unfinished unit was of equal dignity to that of his employer, and that the duty of the defendant to refrain from subjecting......

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