181 F. 635 | U.S. Circuit Court for the District of Southern New York | 1910
The action is upon a bond given upon importation of certain merchandise. Some of the packages were sent to the public store to be opened and examined; the remaining packages were delivered to the importers upon their giving the bond in question. Its condition is that the obligors “shall, within ten days after the package or packages designated by the collector and sent to the public store to be opened and examined have been appraised and reported to him, be returned upon demand to the order of the collector without having been opened.” The complaint avers that defendants did not return upon demand, etc., but is silent as to whether or not the. demand was made within the 10 days.
There is no breach of the bond unless the 10 days elapse without compliance being had with a demand for a return. Failure to demand within the 10 days is not a defense, as was suggested on the argument; demand and disobedience thereof must be shown to establish a breach. If the pleader had set forth the facts, viz., that the goods were appraised and reported on such a date, that demand was made on such a date, and that such demand had not been complied with, he would have stated his case with a specificness which it now lacks.
The demurrer is sustained, with leave to amend the complaint within 10 days.