From the evidence in this case, it is clear that the assignor of
the defendants in error employed the plaintiffs in error as their
agents to enter at the Custom House in New York importations of
sugar imported by them, and, after protest, to commence suits to
recover an excess of duty imposed upon the importations, and that
the plaintiffs in error undertook to perform those services, and,
it being settled in actions brought by other persons under similar
circumstances and on like importations, that such duties were
illegally exacted, and the plaintiffs in error having failed to
commence suits within the period limited by law to recover such as
were illegally exacted from the assignor of the defendants in
error,
held that the judgment of the court below for their
recovery must be affirmed.
Page 125 U. S. 586
The case is stated in the opinion of the Court.
The defendants in error were assignees of Burgess, and were
admitted by the court, under the provisions of the Code of New York
to appear as such, and as plaintiffs there to prosecute the suit to
judgment.
MR. JUSTICE MILLER delivered the opinion of the Court.
The writ of error in this case is to a judgment of the Circuit
Court of the United States for the Southern District of New York.
This judgment was entered upon a verdict rendered by a jury in
favor of the plaintiffs, Benjamin F. and Walter Burgess, under the
peremptory instructions of the court, for the sum of $6,105.77,
against the defendants, Bowerman Brothers.
Burgess & Sons were dealers in sugars and molasses, residing
in Boston, and Bowerman Brothers were sugar brokers, residing in
New York. Burgess & Sons had a large part of the articles in
which they dealt, either for themselves or as agents for others,
landed in New York and entered at the custom house there. In such
cases, they employed Bowerman Brothers as their agents, and it is
not disputed that this agency extended to the entry of these goods
at the custom house in New York, as well as to the sale of them
afterwards. With regard to two shipments of goods so entered there
from two different vessels, a question arose as to the duties
assessed upon them by the collector. This controversy proceeded as
far as the payment of the duties through Bowerman Brothers,
followed by an appeal from the decision of the collector to the
Secretary of the Treasury, and a protest against the final action
of the department. All this was attended to, and faithfully
performed in due time by the defendants. They, however, did not
bring suit to recover back the duties so paid, and the
Page 125 U. S. 587
single question to be decided here is whether it was the duty of
Bowerman Brothers, under the circumstances of their employment, to
have brought such a suit against the collector for the excess of
duties claimed to have been imposed by him on these
importations.
The case arises in this way:
Suits were brought by other parties who had paid similar duties
upon like importations, and recoveries had against the collector
upon precisely the same grounds mentioned in the protest of the
plaintiffs in this suit, and in a case brought to this Court, the
error of the Treasury Department was established. But the statute
allowing recoveries to be had against the collector for excessive
duties which have been paid requires the suits to be brought within
ninety days after such payment has been made, and that period had
elapsed before the decisions in those cases. It was for that reason
too late for Burgess & Sons to cause suit to be brought to
recover back their alleged excessive payments.
Bowerman Brothers maintain that, as mere sugar brokers, it was
no part of their duty to cause suit to be brought on account of the
imposition of excessive duties, and that they are not liable,
therefore, for the failure to do so by reason of which it is very
clear the sum recovered in this suit was lost to the plaintiffs. On
the other hand, Burgess & Sons insist that whether it was a
part of their duty as brokers to institute such suit or not, they
had come under an obligation to do it by reason of conversation or
correspondence which passed between the parties. The whole of this
correspondence, and the verbal testimony of one of the plaintiffs,
which is very brief, is found in the bill of exceptions, and we
concur with the judge who tried the case below that this
correspondence itself makes out the obligation of Bowerman Brothers
to have caused the institution of such a suit.
About the only piece of verbal testimony that is of any
consequence in the consideration of this matter is the statement of
Mr. Burgess on the stand that his firm fully relied upon the
defendants to attend to the matter of bringing such a suit. Some of
the letters produced which passed between them make this very
plain.
Page 125 U. S. 588
On January 27, 1881, the plaintiffs wrote to the defendants as
follows:
"We notice the tests, and have seen the sample. They are
certainly very beautiful sugars for their class. Now we feel
anxious as to the duties on the dry test, but if they should be
decided against us, we must protest as soon as duties are paid, and
place the matter in the hands of a first-class lawyer -- the one
employed by Messrs. Knowlton, perhaps, unless you know of a better
-- to commence the suit as soon as possible, but we hope all this
will not be necessary."
"
* * * *"
"If the sugars are marked up on dry test, it is necessary to
formally protest against the decision of the collector and then
appeal to the Secretary of the Treasury. This is the first step,
and, when the duties are paid, to enter suit."
To this the defendants replied on the next day: "Your favor of
yesterday is received, and contents noted, all of which will be
duly attended to."
Several other letters then follow concerning other importations
and protests made by Bowerman Brothers on behalf of plaintiffs
against the duties levied on those goods. On March 31, 1881, the
plaintiffs wrote to the defendants: "Of course, you will duly
appeal from the government assessing duties by tests." On April
15th, the defendants wrote to Burgess & Sons as follows:
"We have your favor of yesterday, and enclose herewith the
Secretary of the Treasury's reply to our appeal of March 5th
(sugars per
Santiago,' Jan. 25, '81). The collector's decision
is affirmed. We suppose you will wait the decision in the Welch
suit before commencing proceedings."
"Please advise us."
To this the plaintiffs replied on April 16th as follows:
"We are in receipt of your favor of yesterday enclosing the
reply of the Secretary of the Treasury to your appeal of March 5
regarding sugars
ex Santiago, Jan. 25. We would await the
decision in the Welch suit before commencing proceedings, if there
is time."
"Please keep us posted in the sugar case. "
Page 125 U. S. 589
On April 27, 1881, Bowerman Brothers wrote to plaintiffs as
follows:
"Your favor of yesterday is received. The Kioto sugars are about
half out of ship, and we send you tonight, by express, samples and
tests of each mark. Our market is quiet but strong. We hear that
the government has decided to appeal from the decision (in New
York) in the Welch case. Sales reported as below."
On June 18, 1881, Bowerman Brothers again wrote to plaintiffs as
follows:
"We presume you have in mind the Santiago's cargo --
centrifugal, Angelita -- which arrived here July 6, 1880, the most
of which was raised on polariscope test, one-fourth cent, and 25
percent above the legitimate rate of entry on Dutch standard, and
will commence suit against the government in due season."
To this latter, the plaintiffs, Burgess & Sons, replied or
June 20th, as follows:
"We have your favor of the 18th, in which you say,"
"We presume you have in mind the Santiago's cargo --
centrifugal, Angelita -- which arrived July 6, '80, the most of
which was raised on polariscope test, one-fourth and 25 percent
above the legitimate rate of duty on Dutch standard, and will
commence suit against the government in due season."
"The cargo you refer to did not pay at all, as we understand
duty above the Dutch standard, it having just escaped on dry
test."
"Of course we must not let any of our cases escape due
attention. We attend here to all our Boston cases, and enter suits
as fast as they come around, and we suppose you can do the same as
our agents in New York. Are we right? Please look into every case
and keep us timely informed, and whether there is anything for us
to do personally or by power."
We think the whole of this correspondence leads to the
inevitable conclusion that the defendants, either expressly, or by
fair implication, assumed the duty of causing suit to be brought
within a reasonable time, living, as they did, in New York, where
the transactions all occurred, where the suit
Page 125 U. S. 590
must be brought, and being frequently admonished by the letters
of plaintiffs to see that suit was brought in due time.
This is especially evidence from the last letter quoted above,
in which the expectation of plaintiffs is distinctly stated that
defendants would cause suit to be brought "in due season," and an
inquiry made whether they are right in that supposition. They had
by the statement in their letter, "Please look into every case, and
keep us timely informed, and whether there is anything for us to do
personally, or by power," which is not denied, raised an implied
acknowledgment on the part of the defendants that they would attend
to this matter.
Taking the evidence all together, it is very clear that Burgess
& Sons understood that Bowerman Brothers would attend to the
whole affair from the beginning to the end, and, without regard to
their special occupation as mere sugar brokers, would take charge
of all that was necessary to secure the rights of the plaintiffs in
the matter of paying duties, making proper protests, getting the
goods through the customhouse, and seeking redress by suit against
the collection if that became necessary. And, that they might be
sure that they were not mistaken in this understanding, the letter
of the 20th of June was written, which required in good faith that,
if Bowerman Brothers did not consider themselves charged with the
duty of having as suit brought in due time, that they should have
made a disclaimer of it by an immediate answer. It cannot be denied
that the loss by Burgess & Sons of the sum of money found in
the verdict was due to the failure of Bowerman Brothers to fulfill
faithfully the obligation in this particular which they had assumed
in this correspondence, and which Mr. Burgess swears his firm
relied upon them to perform.
The judgment of the circuit court is
Affirmed.