Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.
Action by Albert Comstock against Walter L. Flower. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
The suit is for a breach of contract. The contract is made up of, and is to be interpreted by, the following documents:
First, the following letter:
"December 13th, 1901. Messrs. Walter L. Flower & Co., Chemical Building, St. Louis, Mo. — Dear Sirs: I am conducting a contest before the Board of Appraisers in behalf of a number of importers of copper flexible tubing against the assessment of duty upon the same at 45 per cent. Mr. Morris Ansell, representing the English manufacturer, is now in this country, and I have availed myself of his testimony in support of the contests. He has given me your name together with several others, as being interested as importers
of this tubing, and has suggested that you would probably be glad to join your interests to those of the other importers who have placed theirs in my hands for this contest.
"You are probably aware that the same question arose in a San Francisco case and was decided adversely to the importers in the summer of 1900. I believe notwithstanding that there is quite sufficient chance of recovery where protests are properly filed and prosecuted to warrant my conducting the contest on the customary contingent basis of a half interest in the amount eventually recovered — the importers to incur no expense in any case beyond the said contingent half interest in the amount eventually recovered, the importers to incur no expense in any case beyond said contingent half interest, even though an adverse decision by the Board may require further prosecution in the courts.
"If you have any entries of these goods which are not yet liquidated, or which have been liquidated within a few days, or if you expect to make any entries, I shall be glad to have you sign the enclosed contract covering the issue, and at the same time to send me immediate notice of any such entries. If you have lodged any protests yourself, I will arrange to control them in your behalf.
"Very truly yours
"Albert Comstock."
Second, the answer to the above letter:
"St. Louis, Dec. 20, 1901. Mr. Albert Comstock, 56 Pine Street, New York City — Dear Sir: Your favor of the 13th has not been answered earlier on account of the writer's absence from the city, and we attach our signature to the agreement, and return the same herewith, accept all the terms as outlined in this agreement and your letter of the 13th.
"We at present have no entries in the Customhouse, or have we had any for a few days past, but will be advised of those that come along in the future.
"Yours very truly
"Walter L. Flower & Co
"Walter L. Flower."
Third, the following formal contract:
"In consideration of the information, advice and services of Albert Comstock, of 56 Pine street, New York City, in the matters hereinafter referred to, we, the undersigned, hereby respectively retain said Albert Comstock, as our attorney, and authorize him to act as our attorney and agent, for the recovery and collection of excessive customs duties charged on all importations of Flexible Metallic Tubing, made by us for our respective interests. We hereby severally agree to pay the said Albert Comstock fifty per cent. of each and every amount recovered by us respectively, out of such excessive duties whether recovered by repayments to us of a sum previously paid by us, or by our being credited on the official records with an amount previously charged against us. We also agree to give said Albert Comstock timely and sufficient notice of each such importation, and of all official transactions connected therewith. But we are not to be liable hereunder for any expenses which may be incurred by said Albert Comstock in pursuance of this agreement, nor for any sums whatever, except in the event of a recovery as stated above, and then only to the extent above named.
"This agreement, with the terms of compensation herein provided, is intended to recover and include all importations as aforesaid which have already been entered at the customhouse, and also all which may hereafter be entered, before final decisions are reached concerning the respective contentions covered hereby; such final decision meaning either the abandonment of the contention by our said attorney, or the official recognition by the Collector of the Port of the correctness of said contention.
"In witness whereof, we have hereunto set our hands respectively on the dates named in connection therewith.
"Walter L. Flower & Co
"Walter L. Flower
"December 20, 1901."
Plaintiff alleged the performance of the contract on his part by the successful prosecution of a test case before the Board of United States General Appraisers, sitting at the City of New York, on the protest of William Larzelere & Co., the refunding by the United States to plaintiff of $962.67 on account of overpayments by the defendant of duties on importations of iron and copper flexible tubing, and the refusal of defendant to pay plaintiff one-half of said $962.67, as agreed upon. The answer was a general denial.
At the trial, defendant objected to the introduction of any evidence for the following reasons: "(1) Because the contract sued on shows, on the face of the pleadings, that an attempt is being made to enforce a contract infected with champerty. (2) Because the contract sued on shows on its face and the face of the pleadings that the contract related to future importations of copper tubing, while damages were claimed on importations made long prior to the date of the contract on both copper and iron tubing. (3) That the alleged prosecution of an alleged test case pleaded in the answer was not within the terms of the contract." These objections were overruled.
Walter L. Flower, by deposition, testified for plaintiff as follows: "During the summer of 1900 we imported from England, purchased from the United Flexible Metallic Tubing Company, Limited, flexible metallic tubing. The importations were made through the customs brokers, Charles H. Wyman & Co., who attended to business in connection with such importations, such as making entries, payment of duties, making of protests, and everything pertaining to them. I do not know anything about the names of the steamers
or dates. Some refunds were made through C. H. Wyman & Co., but can't state the amounts."
Thomas W. Mabrey testified, in substance, as follows: "I am connected with the office of surveyor of the port. Have been for about eleven years. I am liquidating clerk. The duties of this department are to calculate the duties, and where importers are notified of the amount due on their importations. I figure the amount of government charges on all importations, by use of invoice. In case of a dispute as to the amount to be paid, we go to the treasury decisions, if any, to the Board of Appraisers, and instructions of the department. We use our own judgment, and, if there are two rates applicable, we always collect the highest rates. We select the paragraph which in our opinion covers the particular importations. If the importer differs from us as to the particular paragraph the importation comes under, the tariff law itself provides he may have the right of protesting, and an appeal to the Board of General Appraisers in New York within ten days after the time of liquidation, by which is meant the final calculation of the duties which the importer owes the government. The importer must pay the duties before the protest is forwarded to the Board of Appraisers. After the amount is calculated, the importer pays the duty, whether he objects or not. The protest goes to the Board of Appraisers at New York. They take it up in due course, and hear and decide it. After they have decided it, a copy of their decision comes to our office, and is turned over to me; and at the end of thirty days, in the absence of an appeal on the part of the government, I take it up and make a refund certificate. We reliquidate it or figure the duty over again. This is done when the Board of Appraisers says the original liquidation was too high, and I reliquidate at figures which they say is right. On the reliquidation, a refund certificate is made and given to the importer for the amount overpaid. The importer then makes affidavit to the certificate, and it is then forwarded to the department at Washington, and in the course of two or three weeks a check comes back to the importer or broker through us for...
