Erskine v. United States

• Decision Date: 30 June 1936
• Docket Number: No. 7977.,7977.
• Parties: ERSKINE v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

84 F.2d 690 (1936)

ERSKINE v. UNITED STATES.^*

No. 7977.

Circuit Court of Appeals, Ninth Circuit.

June 30, 1936.

Keyes & Erskine, Herbert W. Erskine, and Morse Erskine, all of San Francisco, Cal., for appellant.

H. H. McPike, U. S. Atty., and Robert L. McWilliams and S. P. Murman, Asst. U. S. Attys., all of San Francisco, Cal.

Before WILBUR, DENMAN, and HANEY, Circuit Judges.

DENMAN, Circuit Judge.

This appeal is from a judgment awarding recovery against appellant for additional or increased duties on certain calculating machines imported from Bremen. The liability is based on a document held by the District Court to be an agreement of appellant given under the Tariff Act of September 21, 1922, c. 356, title 4, § 485 (d), 19 U.S.C.A. § 355.

Appellee admits that if the document in question does not comply with the requirements of the statute, the customs brokers making the entry as consignees and not the appellant are liable for the additional duties. Appellant contends that if it complies with the statute it binds another person, the W. W. Erskine, Inc., and not himself.

That section of the customs law in question reads as follows: "§ 355. Same; when consignee not liable for additional or increased duties. A consignee shall not be liable for any additional or increased duties if (1) he declares at the time of entry that he is not the actual owner of the merchandise, (2) he furnishes the name and address of such owner, and (3) within ninety days from the date of entry he produces a declaration of such owner conditioned that he will pay all additional and increased duties, under such regulations as the Secretary of the Treasury may prescribe. Such owner shall possess all the rights of a consignee. (Sept. 21, 1922, c. 356, Title IV, § 485 (d), 42 Stat. 961.)"

Such revenue acts must be construed strictly in favor of the appellant sought to be charged as importer. He is "entitled to the benefit of even a doubt." Tariff Act 1897, 30 Stat. 151; United States v. Riggs, 203 U.S. 136, 139, 27 S.Ct. 39, 40, 51 L.Ed. 127; Hartranft v. Wiegmann, 121 U.S. 609, 616, 7 S.Ct. 1240, 30 L.Ed. 1012; Miller v. Standard Nut Margarine Co., 284 U. S. 498, 508, 52 S.Ct. 260, 76 L.Ed. 422.

Pursuant to the statute (1) the brokers entering the merchandise as consignees declared at the time of the entry that they were not the actual owners of the machines and (2) furnished the appellee the name and address of "such" actual owner, W. W. Erskine, Inc., shown to be a California corporation.

It is concerning the requirement (3) of the statute that the controversy here arises. Instead of the brokers producing a declaration of "such owner i. e. W. W. Erskine, Inc., the corporation conditioned that he will pay all additional and increased duties," they produced a declaration signed by W. W. Erskine, an individual. W. W. Erskine was in fact president of the corporation, but appellee claims he did not sign in that capacity, and argues that he therefore made himself liable.

After appellee received this declaration, appellee's agents, the customs authorities, assessed the increased duties against the corporation, and not against appellant. W. W. Erskine, Inc., in its corporate capacity, petitioned for remission to the United States Customs Court. In its decision W. W. Erskine, the individual, was found by the court to be the "proprietor" of the petitioning corporation. The Assistant Attorney General, representing the appellee, did not contend the corporation was not the owner, but succeeded in defeating the corporation's petition for remission and established that the petitioning corporation was liable for the additional duties appellee had assessed against it.

In the passing years from the importation in 1924, the depression had ensued. The corporation had ceased to function, its books were lost, and its business gone. Appellee did not press its claim against the corporation against which it assessed the duties, and, in 1930, filed suit against the appellant on the declaration given by him to the appellee.

Though the document does not comply with the third condition of the statute, in that it is not signed by the ("such") corporate owner under the requirement of the second condition, appellee contends it is in such form that it frees the brokers, does not bind the corporation, W. W. Erskine, Inc., and does bind W. W. Erskine as an individual.

Appellee claims that appellant owes the duties assessed against the corporation because he is its alter ego. The burden of proof on such an issue is upon appellee. The facts are that the stock of the corporation consisted of 35,000 shares of preferred outstanding, but 18,000 of which were owned by appellant. Appellant owned all the common. Appellee offered no proof of the capitalization, so it may well be that the entire capital value was absorbed by the preferred. The fact that in a proceeding in the Customs Court concerning the corporation's liability, the court found him, its president, to be its "proprietor," and that as such proprietor he described in the first person what he did with regard to the corporation, is not proof that he is the corporation's alter ego, against the evidence of its stock ownership. There is no merit in appellee's contention.

We therefore hold that if appellee's contention that the declaration concerns only the appellant is correct, the consignee brokers are liable. This is because they failed to comply with requirement (3) of section 485 (d) to produce a declaration and agreement to pay the duties made by "such" corporate owner named pursuant to requirement (2) of the statute.

Following appellee's premise to its conclusion, since the brokers remain liable for the duties, there is no consideration for the unilateral agreement of the appellant. No consideration is expressed on its face; none is shown to have been given by the appellee promisee. The consideration contemplated by the statute is the detriment to the promisee, in releasing the claim against the brokers. This is so obvious that it overcomes the presumption, if any, in California, that consideration was given, arising from the fact that the promise was in writing. Since the brokers were not released, there is no detriment and no consideration.

The appellee maintains that the defense of lack of consideration is not within the issues of the case, because not pleaded.

Under the law, it was not necessary to plead this defense.

The complaint is the common form of complaint in indebitatus assumpsit, a common count. The answer is a general denial.

The rule is stated in 13 C.J. 740, 741, as follows: "As a rule, if plaintiff declares specially on an express contract, a want of consideration cannot be proved under the general issue or the general denial. But if he declares on the common counts instead of declaring specially, defendant may show either a want or a total failure of consideration under the general issue; and this on the principle that the plea of non assumpsit puts plaintiff on proof of his whole case and entitles defendant, without prior special notice, to give evidence of anything which shows ex aequo et bona that plaintiff ought not to recover."

See, also, Craig v. State of Missouri, 4 Pet. 410, 426, 7 L.Ed. 903; McCrea v. Parsons (C.C.A.7) 112 F. 917, 919; Wetmore v. San Francisco, 44 Cal. 294, 300; Meredith v. Santa Clara Mining Association, 56 Cal. 178, 183; Heaton-Hobson Associated

Law Offices v. Arper, 145 Cal. 282, 284, 78 P. 721.

In the last case cited, an action in indebitatus assumpsit, the court said (145 Cal. 282, 284, 78 P. 721, 722): "The answer was sufficient to present an issue in the case. As said in Young v. Rummell, 2 Hill N.Y. 478, 38 Am.Dec. 594, quoted with approval by this court in Meredith v. Santa Clara Min. Ass'n, 56 Cal. 178 183: `Although, in point of form, the plea of non assumpsit puts nothing in issue but the making of the promise, it has been long settled that nearly every defense is admissible under that plea which shows that there was not a subsisting cause of action at the time the suit was brought.'"

Appellant's position is that he signed the document, not as an individual, but in his capacity as president of the corporation, intending to bind it. Considering the case from this angle, since the document is on a printed form furnished by the appellee through its Treasury official, any ambiguity must be resolved against the appellee drafting it. Commissioner of Internal Revenue v. Leasing & Building Co. (C.C.A.6) 46 F.(2d) 2, 4.

The printed form reads: "I, the undersigned, representing _________ address ___________ in the capacity indicated hereon, declare that they are the owners of the merchandise covered by the entry described below, and that they will pay all additional and increased duties pursuant to Section 485, paragraph D, of the Tariff Act of 1922, and that such entry exhibits a full and complete account of all the merchandise imported by them in the vessel indicated and obtained by them in pursuance of a purchase, or an agreement to purchase, except." (Italics supplied.)

The form for determining the "capacity" in which it is signed consists of a line for the signer ending in a vertical arrangement of three squares. The top square has next it the word "principal," the next beneath the words "member of the firm," and the lower the words

"_________ of the corporation." (Title)

Appellant signed on the signature line, but did not check or otherwise mark any of the squares. A flourish from his signature beginning in the letter "k" and extending well to its left and returning crossing it to the right for a like distance, extends through the upper square. In appellee's brief below it suggested that it was intended to indicate a designation of the signer as principal. However, the contention cannot be made here since the appellee's attorney withdrew the suggestion in the following language: "The government never has contended that defendant W. W....