17 F. 500 | U.S. Circuit Court for the District of Southern New York | 1883
That part of the complaint in these cases which sets forth the illegal exaction of duties is in general terms, stating the amount exacted, the amount which was the legal duty, and the payment to the defendant of the excess by compulsion, in order to obtain the goods. A bill of particulars is annexed to the complaint, stating the classification of the goods on each importation, and all the other particulars required in such cases by section 3012. The complaint does not, however, state the rate of duty claimed by the plaintiff to he applicable, nor the rate exacted by the collector, nor the classification of the goods by the collector. The precise point of the controversy does not, therefore, appear from the complaint. The demurrer in this case, and in numerous others of a similar character, has been interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action, with the object of obtaining in future, if the court sustains the demurrer, a moro intelligible statement in the complaint of the precise point in controversy. It is urged that this is necessary, because, in the long time which often elapses before trial and the accumulation of thousands of such eases, it often happens that there is no record or paper in the district attorney’s office showing the points in controversy, and no person there, or at the custom-house, able to give needed information to prepare * for trial.
The protest and appeal which, by sections 2931, 3011, must precede suits of this character, are required to give precisely the informaJion, as to the points in dispute, which the learned district attorney now seeks to obtain. If the contents of the protests were embodied in the complaint, nothing more could be asked for. The complaint states that the plaintiff “filed with said defendant due, and timely protests in writing upon each entry of said goods against his (the de
The only question, then, is whether the complaints, all of which are in substance as above stated, contain what is technically a sufficient statement of a cause of action. The sufficiency of the pleadings is to be determined by the New York Code of Procedure. This • requires a “plain and concise statement of the facts -constituting a cause of action.” Section 481. But the rule of pleading at common law was the same, viz., that facts, not mere conclusions of law, were to be stated. 1 Chit. Pl. 214; Allen v. Patterson, 7 N. Y. 478.
The facts essential to be pleaded are, however, the ultimate facts constituting the cause of action, not those other subsidiary matters of fact or law which go to make up the ultimate facts, and are evidences of the latter. There is often considerable doubt whether certain facts shall be taken to be essential parts of the very cause of
On the rule contended for it would not be sufficient to designate the goods even by their statutory classification, or to allege that they were dutiable at a certain rate, since this classification, or rate, is often the only subject of controversy, and depends on various other circumstances of fact and principles of law. In the Muser case the goods are designated as “thread laces,”—a statutory classification; but suppose they are in fact black silk laces, and, except in color and material, are precisely the same as white linen thread laces, and are dealt in by the name of thread laces, or black thread lace, while the statute imposes a higher duty on silk laces, or other manufactures of silk. The question of the proper classification would then involve the law of commercial designation and statutory construction, as well, probably, as numerous controverted matters of fact. See Smith
In general, I think, it may be said that a statement is not to be deemed any the less a statement of fact, because its ascertainment may depend upon some principles of law applicable to various other facts and circumstances. Thus a plea of payment is a plea of fact of the simplest form; yet it may involve very nice questions of law and fact, arising from the legal rules concerning the application of payments upon the particular circumstances of fact that may be proved in the case. So a statement that A. sold and delivered goods to B. is plainly a statement of fact for the purposes of pleading/ although on the trial the issue turns out to be one of law, whether, under the particular facts' proved, the transaction was a sale, or a mortgage, or a bailment, or a loan. Norton v. Woodruff, 2 N. Y. 153; 4 N. Y. 76.
The chief ultimate facts which in this class of cases constitute the cause of action are that the true, or legal, or lawful duty—it is immaterial in which form stated—was a certain sum, and that the collector exacted a certain larger sum; or, in a single phrase, that the collector on a certain importation exacted a certain sum of money in excess of the legal duty. How that legal duty is arrived at, i. e., the methods and rules of law and various circumstances of fact by which that legal duty is ascertained and determined, are all subordinate questions, and are only evidence leading to the one ultimate fact of the illegal exaction of a given sum of money.
This view is sustained by the form of action sanctioned by long usage in such cases. At common law, and under the statutes of this country, it has been held that an ordinary count in indebitatus assumpsit for money had and received, is an appropriate mode of declaration to recover back an excess of duties exacted on the importation of goods. City of Philadelphia v. Collector, 5 Wall. 720, 726, 731; State Tonnage Tax Cases, 12 Wall. 204, 209; Elliott v. Swartwout, 10 Pet. 137; 2 Greenl. Ev. § 121. The exaction of money beyond the legal rate, whether for duties, tolls, or taxes, is the one ultimate fact which in law constitutes the receipt of the money to the use of the person illegally compelled to pay it. All the other facts and circumstances of the Case, and any principles of law applicable to them, and determining their effect or construction, are only subsidiary, and evidences of the one ultimate fact to be proved, viz., the unauthorized exaction of a certain sum of money/
Under the Code, the court of appeals has repeatedly held that the common count in indebitatus assumpsit for goods sold and delivered, Or for money had and received, is sufficient now as formerly. Allen v. Patterson, 7 N. Y. 476; Moffet v. Sackett, 18 N. Y. 522, 525; Hos
Whore a statement of fact, though in form allowable, is so general as not to afford sufficient knowledge of the particular question to be tried, tlie complaint may be required to be made more definite and certain, (Code, § 546,) and that would seem to be tho proper remedy where the defendant is really without means of information of the real points in controversy. But congress has by law already so carefully provided for fall information to the collector on all points in dispute as to the payment of duties, through the requirement of protest and appeal before suit, and a bill of particulars to be served afterwards, (section 3012,) that occasions must he rare in which full information is not already in the defendant’s possession before answer.
in the case of Prickhardt, the complaint in regard to the protests merely states that the plaintiff paid “under protest.” This alone is clearly not equivalent to a statement of having made a protest in writing, nor of having filed it within 10 days after liquidation. At first, tho complaint in that case seemed to me defective in this respect; but section 3011 says: “Any person who shall have made payment under protest, do., may maintain his action,” etc. This complaint states exactly these words, and exactly conforms, therefore, to this clause of ilio statute, and it is doubtful whether that is not sufficient pleading under this section, leaving it to be shown by proof that the terms and time of the protest were such as to entitle the plaintiff to a recovery ; and the bill of particulars served with the complaint does show that the protests must have been in writing and duly filed. Under section 519 of the Code, providing that pleadings are to be “liberally construed, with a view to sublantial justice,” I think the complaint and bill of particulars should together be held sufficient.
In the other casos, the statement that due and timely protests, etc., in writing were filed, is clearly a sufficient plea of such precedent conditions, (Code, § 533,) and is sustained by analogous decisions. People v. Walker, 23 Barb. 305; Woodbury v. Sackrider, 2 Abb. Pr. 402; Farmers’ Bank v. Empire, etc., Co. 5 Bosw. 275; French v. Willett, 10 Abb. Pr. 102. The demurrers must, therefore, he overruled, with liberty to withdraw them, and answer, if desired, within 20 days; the orders to be settled on notice.