Redfield v. Bartels

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 Bed-field, then late collector of the port of New York, to recover back the sum of fifteen hundred dollars duties at the rate of forty per cent under Schedule B of the act of July 30, 1846, 9 Stat. 42 , c. 74, that had been unlawfully assessed on charges for inland transportation on a large number of importations of champagne wine invoiced from Bheims, and exported from the port of Havre, and on one-half of one per centum 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, 1S64.

The declaration was filed March 30, 1864, and consisted of the common counts, alleging an indebtedness in the sum of $1500, 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 $1500. On April 20, 1864, the defendant 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 per centum on merchandise imported by the plaintiffs at New York, from

Great Britain; on commissions over two per centum on merchandise imported by plaintiffs at New'York from the Continent of Europe (except Paris); on the discount of two and one-half per centum 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 to 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 cáse 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

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

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.

In Redfield v. Ystalyfera Iron Co., 110 U. S. 174 , 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 $1500, 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

In United States v. Sanborn, 135 U. S. 271 , 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 give 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 $1500. 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 third of October, 1887, when judgment was signed for $51,302.48. The

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 defence of res adjudicata. "Whether the $1500 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 awarded was $14,394.95, or $12,894.95 after deducting $1500.

The judgment is reversed, and the cause rema/nded, with a direction to the Circuit Court to enter judgment for $1500 mid interest from November 16, 1863, and for $1%,891^.95 with interest from Ja/nuary 8, 1881.