100 F. 600 | 8th Cir. | 1900
Levi J. Smith and George T. Mortland, the defendants in error, who are co-partners under the name of L. J. Smith & Co., and several other persons, in the fall of the year 1897 consigned to Jacob Stirneman, the plaintiff in error, about 3,735 barrels of apples of various kinds, to be sold by him on commission; the proceeds to be duly accounted for when sold. Stirneman was at the time a commission merchant residing and doing business at Winona, Minn., to which place the apples were consigned. The con
It is first assigned for error that in the course of the trial the court erroneously permitted a witness for the plaintiffs to testify, in substance, that on March 2, 1808, he went into the cellar underneath the defendant’s place of business in Winona, and there saw a large quantity of apples which not only corresponded, in species with those that had been shipped to him by the several consignors, but were packed in barrels on which the names or the initials of two of the consignors had been stenciled, and that the fruit was then in good condition, and was worth from §3 to §3.75 per barrel. It is said that the admission of this testimony was improper, because the incident occurred several weeks after the defendant below claimed to have disposed of all of the apples that had been shipped to him, and that the identification of the fruit as a part of that which had been received by him from the several consignors was incomplete. We are unable, however, to attach any importance to this suggestion. The testimony in question had a marked tendency to show that the defendant had a considerable quantity of the apples in his possession some weeks after he claimed to have sold all of them and to have accounted for the proceeds, and that the fruit was even then in good condition, and worth fully as much as the plaintiffs claimed that it was worth. If the testimony in question had been rejected the trial court would have committed a palpable error.
It is next insisted that the trial court erred in admitting in evi-
The first of these objections is clearly without merit. The defendant below had introduced evidence tending to show that, when the barrels containing the apples in controversy were opened in Winona, it was found that the fruit was in great part of poor quality, and had not been properly packed by the shippers, and that by reason of such facts the apples had to be rehandled and sorted before they were placed on the market. The depositions in question were taken in Calhoun county, Ill., and contained evidence tending to show that the apples in question were of fine grade and quality; that the fruit crop in that county during the season of 1897 was of an excellent character; that the apples had been well and skillfully packed before shipment, in good barrels; and that, being so packed and in fine condition, they would not be apt to sustain injury by transportation from the place of shipment to Winona. We entertain no doubt, therefore, that the proof contained in the depositions was competent, and that it was introduced at the right time to rebut the evidence which the defendant had introduced.
A more important inquiry is whether, under Schedule A of the recent revenue act of June 13, 1898 (30 Stat. 455, 460, c. 448), the notary before whom the depositions were taken was required to affix to his certificate a 10-cent revenue stamp. One clause of Schedule A requires a 10-cent stamp to be affixed on a “certificate of any description required by law not otherwise specified in this act”; and notarial.certificates, such as the one involved in the present case, are not referred to by any other provision of the act. Section 14 of said act declares “that hereafter no instrument, paper- or document required by law to be stamped which has been signed or issued without being duly stamped, or with a deficient stamp, nor any copy thereof, shall be recorded or admitted or used as evidence in any court until a legal stamp or stamps denoting the amount of tax shall have been affixed thereto as prescribed by law. * * *” Section 15 of the act makes it unlawful “to record or register any instrument, paper or document required by law to be stamped, unless a stamp or stamps of the proper amount shall have been affixed and cancelled in the manner prescribed by law,” and further provides that “the record, registry or transfer of any such instruments upon which the proper stamp or stamps aforesaid shall not have been affixed and cancelled, as aforesaid, shall not be used in evidence.” Section 17 of the act declares “that all bonds, debentures or certificates of indebtedness issued by the officers of the United States government, or by the officers of any state, county, town, municipal corporation, or other corporation exercising the taxing power shall be and are hereby exempt from the stamp taxes required by this act: provided, that it is the intent hereby to exempt from the stamp taxes imposed by this,act such state, county, town, or other mu