On the 16th of November, 1863, plaintiffs brought suit to
recover customs duties illegally exacted, laying the
ad
damnum at $1500. On the 8th of January, 1881, they amended
their claim, increasing the
ad damnum to $20,000. There
was no interest count in the declaration, and it was doubtful
whether interest was at first specially declared for in any way. No
account was rendered or demand made prior to the commencement of
the suit, nor was any bill of particulars furnished at that time.
On the 11th of May, 1882, a bill of particulars was for the first
time served. The court below gave judgment for $14,394.95, with
interest from the date of the several payments.
Held, on
the facts set forth at length in the opinion, showing laches on the
part of plaintiffs, that they were only entitled to judgment for
$1,500 with interest from November 16, 1863, and $12,894,95, with
interest from January 8, 1881.
Page 139 U. S. 695
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This suit was brought by George F. W. Bartels and others in the
New York supreme court, November 12, 1863, against Redfield, then
late collector of the port of New York, to recover back the sum of
$1,500, duties at the rate of forty percent, under Schedule B of
the Act of July 30, 1846, 9 Stat. 42, that had been unlawfully
assessed on charged for inland transportation on a large number of
importations of champagne wine invoiced from Rheims, and exported
from the port of Havre, and on one-half of one percentum excess of
commissions on the said importations. Service was made November 16,
1863, and notice of appearance given, and bill of particulars and
copy of complaint demanded by defendant, and the suit removed to
the Circuit Court of the United States for the Southern District of
New York by certiorari on February 20, 1864.
The declaration was filed March 30, 1864, and consisted of the
common counts, alleging an indebtedness in the sum of $1,500 for
money lent and advanced, paid, laid out, and expended, had and
received, and due upon an account stated, and the
ad
damnum was placed at $1,500. On April 20, 1864, the defendants
filed a plea of the general issue, and on the next day, April 21, a
jury was called and sworn in this and some other cases, and a
verdict rendered in these terms:
"By consent of counsel, the jury find a verdict for the
plaintiffs in the above-entitled action for excess of duty, with
interest thereon, illegally exacted from plaintiffs and paid under
protest to defendant, and not barred by the statute of limitations,
on commissions over one and one-half percentum on merchandise
imported by the plaintiffs at New York from
Page 139 U. S. 696
Great Britain; on commissions over two percentum on merchandise
imported by plaintiffs at New York from the continent of Europe
(except Paris); on the discount of two and one-half percentum
disallowed on linens imported at New York from Ireland; on charges
on merchandise imported at New York from Ireland; on charges on
merchandise imported at New York for the transportation of the
goods from the interior of the country by railroad or water
carriage incurred prior to the time of exportation; on coastwise
and transportation charges from Ireland and Scotland to England on
merchandise imported at New York from Ireland and Scotland via
England, and on additions to make market value of said merchandise
at London and Liverpool; on transportation charges from the
continent of Europe to Great Britain, on merchandise imported at
New York from the continent of Europe via Great Britain; on
merchandise imported by the plaintiffs at New York, and invoiced in
Bremen thalers, by the Bremen thalers having been computed in
assessing duties at a higher rate than seventy-one cents, the rate
at which it should by law have been computed; the amount of excess
of duties exacted from the plaintiffs, and paid by the defendant,
and embraced in the plaintiffs' bill of particulars, to be adjusted
by the clerk of the court or his deputy. It is expressly stipulated
that in case it shall appear on the adjustment or otherwise, in any
case, that the suit was not brought within the time prescribed by
statute of limitations, or that the question of timeliness of
protest, or the question of a sufficiency of a continuous or
prospective protest, shall be involved, the verdict shall be
opened, and opportunity to appeal be given to, and at the option
of, the district attorney."
"A certificate of probable cause to be entered in each
case."
"The right to appeal or writ of error as above not to be
reserved to the district attorney, unless the amount involved be
sufficiently large to allow such writ of error."
March 16, 1865, it was ordered
"that all the orders heretofore made by this court, referring
certain suits against the collector of the port of New York to the
clerk of this court for adjustment, be, and the same are hereby,
revoked, except
Page 139 U. S. 697
as to such cases the adjustment of which has actually commenced
before him."
July 1, 1865, this and other suits were referred by Judge Nelson
to the collector of the port for adjustment. November 20, 1874, an
order was entered
"that the referee therein, in adjusting any of the above causes,
shall not exclude from his report any item or items for the reason
that said item or items were paid more than six years before the
commencement of suit, unless it shall appear that the statute of
limitations was duly pleaded by the defendant in each case, and the
referee is instructed to include such items in his reports and
statements, unless the statute has been pleaded."
Mr. Redfield having died July 22, 1877, and letters testamentary
having issued to Constance C. Redfield and Frank B. Redfield, the
latter, as executrix and executor, were substituted, May 22, 1880,
as defendants. On the 8th of January, 1881, against the opposition
of the government, plaintiffs were given leave to amend the summons
and declaration by increasing the damages therein set forth to
$20,000, and interest from the dates of payment, and an amendment
thus increasing the indebtedness claimed, and the amount named in
the
ad damnum, with interest, was made accordingly on the
face of the original papers. On the 11th of May, 1882, plaintiffs
served a bill of particulars, notifying the defendants that the
plaintiffs' claim
"is for excess of duty paid on charges and commissions on all
importations made into New York on which duties were paid to the
defendants between November 1, 1853, and July 1, 1857,"
and giving a list of the importations. June 30, 1882, the case,
with others, was referred to the clerk of the court for adjustment,
according to the verdict, of the plaintiffs' claim, upon the bill
of particulars as served. On the 19th of September, 1882, a rule to
show cause why the defendants should not be allowed to set up as
additional defenses the pendency of another suit for the same cause
or causes of action,
res adjudicata, and payment, was
entered, but was vacated on the 20th of October. December 15, 1882,
the referee made his report, to which defendants filed exceptions,
which were heard March 28, 1883, and on the 4th of April, 1883,
sustained. The opinion of the circuit judge will
Page 139 U. S. 698
be found in 16 F. 336. A rehearing was granted and had March 4,
1884; the report was recommitted on the 16th of May, 1884, and an
additional report was filed June 1, 1885, finding that the amount
due plaintiffs was $14,394.95 principal, and $29,988.55 interest,
to the date of the report. This report was confirmed April 19,
1886, and interest directed to be computed from the date of the
report to the date of entry of judgment. Judgment was signed
October 3, 1887, for $51,302.48. A bill of exceptions was taken,
and the case brought here on writ of error.
The order of May 16, 1884, recommitting the report directed,
among other things,
"that the referee receive such evidence as the parties may
present respecting the existence of laches which may affect the
right of plaintiffs to recover interest under the decision of the
Supreme Court in the case of
Redfield v. Ystalyfera Iron
Co."
The referee transmitted the evidence taken before him bearing
upon that question, and reported that he failed to see any good and
substantial grounds for a finding of laches on the part of
plaintiffs which ought to deprive them of interest, and he
therefore found and reported that interest should be included in
the judgment. The bill of exceptions contains the evidence adduced
before the referee, his report, and twenty-nine specific findings
of fact, made at the request of the plaintiffs, and a finding, "as
a conclusion of law," likewise so requested:
"That the plaintiffs have not been guilty of laches, but have
used reasonable diligence in the prosecution of this action, and
are entitled to interest on the amount of principal found due by
the referee from the several dates of payment."
And also thirty-six findings of fact as requested by the
defendants, and a refusal of one finding of fact so requested, as
well as refusals to find, as "conclusions of law," that the
plaintiffs "have been guilty of gross laches in prosecuting this
action," and "are not entitled to recover any interest whatever in
this action." To this report and the decisions of the referee the
plaintiffs and defendants severally filed exceptions, those of
plaintiffs relating to certain refusals to find not material here.
The defendants excepted to various findings by the referee in
accordance with
Page 139 U. S. 699
plaintiffs' requests and to specific conclusions relating to
laches and the allowance of interest; to the referee's refusal to
find, as requested by defendants,
"that there is no evidence in this action that these plaintiffs,
or anyone in their behalf, from July 1, 1865, until about April or
May, 1882, when this action was referred to the present referee,
have made any application to the collector of the port, as such
referee as aforesaid, to have this action so adjusted,"
though the referee did find that
"there is no evidence in this action that these plaintiffs, or
anyone in their behalf, from April 1, 1864, until somewhere about
June 30, 1882, ever made any application to this Court, or a judge
thereof, to have this action adjusted pursuant to the verdict
therein."
The defendants also excepted to the referee's refusal to find
the conclusions of law requested by them. The exceptions of the
parties were heard and overruled April 17, 1886. The opinion of the
circuit court is reported in 27 F. 286. The order for judgment is
dated April 19, 1886. Judgment was signed October 3, 1887, as
before stated. To this order, and the decision of the court
embodied therein, the defendants duly excepted insofar as the same
overruled the defendants' exceptions as to the allowance of
interest in the case.
In the view which we take, we do not deem it necessary to
recapitulate the various findings of fact by the referee. It should
be said, however, that it appeared, among other things, therefrom
that a suit was commenced by plaintiffs in 1860 to recover excesses
of duty paid on charges and commissions from November 1, 1853, to
July 1, 1857, in which judgment was finally entered February 17,
1864, which was paid April 7, 1864, and that after the judgment was
paid, certain missing entries and invoices were found in the record
room of the custom house, and the referee held that it was through
no fault of the plaintiffs that the amounts sought to be recovered
in this suit were not included in the prior action, which covered
practically the same period of time, and that if the omission to
include the amounts in the former suit had been through any fault
or negligence of the plaintiffs, it was cured by the verdict
entered April 21, 1864, by consent.
Page 139 U. S. 700
We agree with the circuit court that the consent verdict may be
properly treated as a stipulation, and that it precluded the
defendants from denying that the plaintiffs were entitled to
recover excess of duties illegally exacted by and paid under
protest to the defendants' testator, and that, under the
circumstances, the defense of the former suit, judgment, and
payment could not be availed of. And while, by that so-called
verdict, the defense of the statue of limitations was expressly
reserved, yet, on the 20th of November, 1874, it was ordered that
items barred by the statute should not be excluded from the
recovery except in cases where the statute had been pleaded, and as
that order was not objected to nor exception taken at the time, the
court correctly assumed that the government had waived the
stipulation so far as intended for its protection in that regard,
and hence that there could be a recovery of the items named in the
bill of particulars in this case, notwithstanding they were all
barred upon the face of this record under the statute of
limitations of New York then applicable.
Barney v.
Oelrichs, 138 U. S. 529.
When that verdict was consented to, plaintiffs asserted an
indebtedness of $1,500, and nearly seventeen years afterwards, on
the 8th of January, 1881, they were permitted by amendment to raise
the amount of the alleged indebtedness from $1,500 to $20,000 and
interest, and no exception seems to have been taken to the granting
of that amendment. The bill of particulars was served on the 11th
of May, 1882. These are matters of record, and were also found by
the referee. Treating the findings of fact and conclusions of law
of the referee, and the action of the court in passing upon the
exceptions to the referee's report and findings, as adopting the
referee's conclusions, and to be considered either as a special
verdict or as findings of fact and conclusions of law by the court,
the same having been duly excepted to, the question arises whether
the judgment rendered is justified by those findings. If upon the
facts the court had instructed a jury to find the interest allowed
in this case, and such an instruction had been excepted to, or if
the case had been submitted to the court for trial, and findings of
fact and conclusions of law had been
Page 139 U. S. 701
made accordingly, the question whether there was error resulting
in the judgment as rendered would be open to us, and we hold that
this is so upon this record.
In
Redfield v. Ystalyfera Iron Co., 110 U.
S. 174,
110 U. S. 176,
the Court, speaking by Mr. Justice Matthews, said:
"Interest is given on money demands as damages for delay in
payment, being just compensation to the plaintiff for a default on
the part of his debtor. Where it is reserved expressly in the
contract, or is implied by the nature of the promise, it becomes
part of the debt, and is recoverable as of right; but when it is
given as damages, it is often matter of discretion. In cases, like
the present, of recoveries for excessive duties paid under protest,
it was held, in
Erskine v. Van Arsdale, 15
Wall. 75, that the jury might add interest, the plaintiff
ordinarily being entitled to it from the time of the illegal
exaction. But where interest is recoverable not as part of the
contract, but by way of damages, if the plaintiff has been guilty
of laches in unreasonably delaying the prosecution of his claim, it
may be properly withheld."
That was the case of an action begun on December 30, 1854, to
recover from the collector of the port of New York money alleged to
have been illegally exacted by him for customs duties and paid
under protest, and, on the 15th of December, 1856, a verdict was
taken by consent in the sum of $1,500, subject to adjustment at the
custom house as to the amount. Judgment was finally entered August
22, 1883. The case made, which, by the terms of the verdict, either
party was at liberty to turn into a bill of exceptions, set forth
the entire evidence, but was not an agreed statement of facts, nor
a special verdict, nor a finding of facts by the court, and
contained no exceptions. It could not, therefore, be treated as the
basis for an assignment of errors, but this Court, notwithstanding,
held that the circuit court erred in allowing interest from
December, 1854, until August, 1883, a period of nearly twenty-nine
years, because the delay in the prosecution of the suit was to be
attributed to the plaintiff below. This was in view of the fact
that
"the verdict was purely formal, and was entered by consent,
after the hearing of the evidence, merely as a basis for
further
Page 139 U. S. 702
proceedings, which were to consist in an adjudication by the
court of the questions of fact and law arising upon the testimony,
and liquidation of the amount to be recovered in case the legal
liability was found to exist."
In
United States v. Sanborn, 135 U.
S. 271,
135 U. S. 281,
Redfield v. Ystalyfera Iron Co. was cited with approval,
and the Court said
"that the same rule should be applied against the government
when, in a case like the present one, it has long delayed an
assertion of its rights without showing some reason or excuse for
the delay, especially when it does not appear that the defendant
has earned interest upon the money improperly received by him."
In the case at bar, the findings gave the grounds upon which the
referee and the court concluded that the delay which had intervened
was not fairly attributable to the plaintiffs, and the circuit
court said that it
"arose mainly from complications incident to the fact that the
suit was one of a very large number of similar suits in which
questions affecting the defendants' liability were being litigated
from time to time with varying results; that any recovery which
plaintiffs might have obtained would not have been acquiesced in by
the government, but would have been further litigated, and that
their claim was to that extent involved with the trials and results
of the other suits that it was reasonable to postpone the trial in
prospect of an adjustment, which at times seemed to be near at
hand, but was constantly deferred by the vacillating action of the
officers of the government."
We are satisfied, however, that the judgment cannot be sustained
upon those grounds. The indebtedness plaintiffs set up on the 16th
of November, 1863, when the summons was served, was $1,500. The
indebtedness they were permitted to claim on the 8th of January,
1881, was $20,000. The amount of principal found by the referee,
and for which judgment was entered, was $14,394.95. Interest was
allowed from the date of the several payments aggregating that
amount (all of which were made between November 1, 1853, and July
1, 1857), to June 1, 1885, and from that date to the 3d of October,
1887, when judgment was signed for $51,302.48. The
Page 139 U. S. 703
bill of particulars was not, as we have said, served until May
11, 1882.
All of the items sought to be recovered were barred by the
statute of limitations. A suit had been brought as early as 1860
upon the same cause of action, had gone to judgment, and the amount
had been promptly paid, but plaintiffs were nevertheless permitted
to recover in this action upon the ground that these collections
had not actually been included in the former recovery, and that the
consent verdict or stipulation waived the defense of
res
adjudicata. Whether the $1,500 originally sued for contained
interest, or what particular items were included, does not appear.
There was no interest count, and it is doubtful if interest was at
first specially declared for in any way. No account was rendered or
demand made prior to the commencement of the suit, nor was any bill
of particulars furnished at that time.
As interest was recoverable as damages only, upon the principle
of wrongful detention of the debt, or of unreasonable and vexatious
delay in payment, we are not inclined to regard the debtor as in
default for inability to inform the creditors of the extent of the
deprivation of which they might complain, but, on the contrary,
hold that the lack of diligence on the part of plaintiffs in the
assertion of their claim was so great that no interest should have
been allowed from anterior to the commencement of the suit, and
that such allowance must be limited by the date of service and of
the amendment which enabled plaintiffs to recover the larger
amount, and to the sums claimed at those dates, respectively. The
total principal a warded was $14,394.95, or $12,894.95 after
deducting $1,500.
The judgment is reversed and the cause remanded with a
direction to the circuit court to enter judgment for $1,500, and
interest from November 16, 1863, and for $12,894.95, with interest
from January 8, 1881.