Moore v. . Des Arts , 1 N.Y. 359 ( 1848 )

Bronson, J.

The case made by the bill amounts to this ; and nothing more. The defendant imported the spelter, and paid the duties which were demanded by the government. The property was then sold to the complainant at the “ long price,” or full market value, which, according to the alleged usage in the city of New-York, and the intention of the parties, gave the complainant a right to the drawback, in case the goods should be exported at such time and in such manner as to entitle them to a drawback. While the goods still remained in a condition in which they might have been exported and the drawback secured, the secretary of the treasury decided, that the goods were free from duty; and thereupon the money which had been wrongfully demanded of the defendant when he imported the spelter, was refunded to him by the government. Immediately on publishing the decision of the secretary of the treasury, the right to obtain the drawback on exporting the goods was lost; and the complainant also lost the right and opportunity of obtaining an equivalent for the drawback by reselling the goods at the “ long price”—the market value of the goods being reduced by about the amount of the duties. On this case, the complainant insists, that the money which was refunded to the defendant belongs to him.

Although there is a seeming equity in favor of the complainant, I have not been able to discover any principle upon which his claim can be supported. There was no warranty when the complainant purchased that the goods were dutiable; and no fraud of any kind is imputed to the defendant. So far as appears, the parties dealt upon equal terms, each knowing all that was known by the other. As the government officers have decided both ways on the question whether the spelter was subject to duties, it may fairly be presumed that these merchants knew that was a debateable question ; they knew that the decision which had been made by the collector might be overruled ay the secretary of the treasury, and the duties be refunded to the importer. With this knowledge the defendant sold, and the complainant purchased the spelter, with a right to the drawback, should that right ever become perfect. But there was no sale or purchase of the duties in case they should be refunded by the government, on the ground that the goods were not dutiable. At the time of the sale, there were two contingencies in which the duties might be restored to the importer: he might receive them as a drawback on exporting the goods; or the money might be refunded on the ground that it was improperly demanded at the first. The complainant purchased the right to the drawback; but he did not purchase the other right. And I do not see how we can give it to him without making a contract for the parties.

The argument for the complainant goes upon the ground, that he purchased the right to the duties should they be restored by the government for any cause. But that is not the case made by the bill. He only purchased a fight to the duties in case they should be restored as a drawback on exporting the goods.

There is no allegation that the defendant did any act which deprived the complainant of the right to the drawback. On the contrary, the allegation is, that the right was lost to the complainant immediately on the making and publication of the decision of the secretary that the goods were free from duty. And' such was evidently the necessary consequence of the decision. The right of drawback was at an end, whether the defendant received the money which the government offered to refund, or not. And the decision that such goods were free, would of course reduce their market value by about the amount which had before been charged for duties.

There is a further difficulty in the case. The bill contains no allegation that the complainant, at the time the secretary made his decision, intended to, or would have exported the goods, if the duties had not been refunded; nor that be could have sold the property to any one else for the purpose of exportation ; nor that the goods then bore a higher price in any foreign market than they did in our own. Nor does it appear in any other way, that the complainant lost any thing of value, ny losing the right, which he purchased, to the drawback on exporting the goods. The fall in the market value of the property did not result from the loss of the right of drawback; but was the natural consequence of the decision of the government that the goods were not subject to duties.

I am of opinion that the decree of the court of chancery is right, and should be affirmed.

Decree affirmed.