United States Fidelity & Guaranty Co. v. United States

• Decision Date: 09 December 1912
• Docket Number: 93.
• Citation: 201 F. 91
• Court: U.S. Court of Appeals — Second Circuit
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. UNITED STATES.

201 F. 91

UNITED STATES FIDELITY & GUARANTY CO. v. UNITED STATES.

No. 93.

United States Court of Appeals, Second Circuit.

December 9, 1912

Writ of error to review a judgment in an action brought by the United States against the plaintiff in error, hereinafter called the defendant, as surety upon two distiller's bonds, the relevant portions of which read as follows:

'Now therefore, if Esadore Gladstone shall in all respects faithfully comply with all the provisions of law and regulations in relation to the duties and business of distillers of brandy from apples, peaches, grapes, pears pineapples, oranges, apricots, berries, prunes, figs, or cherries, exclusively and shall pay all penalties incurred or fines imposed on * * * for a violation of any of the said provisions, then this obligation shall be void; otherwise, it shall remain in full force.'

The complaint alleged that the defendant executed the bonds as surety for one Gladstone; that said Gladstone engaged in the business of distilling brandy, and that he failed to comply with the provisions of law governing said business in that he did not pay the taxes upon certain brandy produced by him during the periods covered by the bonds.

Upon the trial the government offered in evidence in support of the allegations of its complaint the assessment made by the Commissioner of Internal Revenue based upon an estimate of the amount of brandy distilled by Gladstone.

The government had a verdict and judgment and the defendant has brought this writ of error.

R. T. Hough, of Washington, D.C., and Joseph L. Barbour, of Hartford, Conn., for plaintiff in error.

John T. Robinson, of Hartford, Conn., Sp. Asst. U.S. Atty.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

NOYES Circuit Judge (after stating the facts as above).

The first question is whether the payment of taxes was covered by the bonds.

The bonds did not mention taxes expressly but were conditioned upon the faithful compliance by the distiller with all the provisions of law relating to the duties of distillers. One of such provisions required the distiller to pay the taxes upon the spirits which he distilled. Consequently it is impossible to see why compliance with that provision was not a condition of the bonds. And such is the interpretation of the authorities. United States v. Richardson Co., 122 F. 904, 59 C.C.A. 130; United States v. Richardson (D.C.) 127 F. 893; United States v. National Surety Co., 157 F. 174, 84 C.C.A. 622; United States v. Sisk, 176 F. 885, 100 C.C.A. 355; United States v. Bicket, 24 Fed.Cas.No. 14,590. See, also, United States v. Rindskopf, 105 U.S. 418, 26 L.Ed. 1131.

The bonds in the cases cited were in form substantially like those here and we find no such difference in the subjects to which they related as to call for any differentiation in interpretation. Nor do we find anything in the history of...