author: HAZEL, District Judge.

text:
    PILLSBURY FLOUR MILLS CO. v. BECKER S. S. CO.
    District Court, W. D. New York.
    Jan. 14, 1931.

      Brown, Ely & Richards, of Buffalo, N. Y. (Laurence E. Coffey, of Buffalo, N. Y., of counsel), for libelant.
    Holding, Duncan & Leckie, of Cleveland, Ohio (T. C. Robinson and Lee C. Hinslea, both of Cleveland, Ohio, of counsel), for respondent.
   HAZEL, District Judge.

On October 7, 1927, at Duluth-Superior, libelant, Pillsbury Flour Mills Company, delivered aboard the steamer Francis L. Robbins, respondent owner, in good order and condition, 200,000 bushels of wheat for shipment to the port of Buffalo1, delivered pursuant to bill of lading in like condition, and storage until April 1, 1928, if desired. The freight charges, including storage, were paid. The hatches were opened on January 14, 1928, at Buffalo, and the cargo was discovered to be in a damaged condition. It was wet, moist, and heated, mostly on the starboard side of the steamer. Respondent claims that the sea water entering the ship’s cargo in course of downward transportation was due to perilous weather which was the proximate cause of the damage, and, under the Harter Act and terms of the bill of lading, the earner was excepted from liability.

Libelant’s contention is that the steamship was unseaworthy and unfit for carrying the cargo in question at the inception of the voyage, and, moreover, that the seas encountered in Lake Erie on her downward trip were not unusual in the month of October or the fall of the year when gales and seas are not infrequently encountered on the Great Lakes.

The steamer Robbins was built in 1905, of 4,222 gross registered tons, 400 feet long, 50 feet beam, 28 feet molded depth. She has 3 compartments for carrying cargo and 20 hatches. The-evidence shows that after repairing three plates on her starboard side in the spring of 1927, which had been damaged in a collision, she was moored from April 12, 1927, to ensuing September 28, 1927, with a cargo of coal at the breakwater in Buffalo harbor, and on the last-mentioned day, sailed for Milwaukee, where her coal cargo was unloaded. In ballast she went to Duluth without any leaks having been discovered, and, after inspection by her officers at Superior, 2 rivets were found loose and leaking on her starboard side, which were caulked and hose tested in the customary manner. She was pronounced fit for grain carriage prior to her departure by the vessel supervisor of the state, and loaded with the grain cargo in question. Her hatches are shown to have been properly battened down. On her downward voyage she encountered some wind on Lake Superior, and on arriving at Lake Erie, while passing Southeast Shoal at 1:58 a. m., a fresh south wind overtook her, which, below the shoal, increased to 30 miles an hour. The seas rolled over her decks and the velocity of the wind from the south increased from 4:30 to 5:30 a. m., raising the seas 25 to 30 feet and continuing to roll over her decks. She pitched and tossed causing her to strain and twist continuously for more than four hours. The velocity of the wind, as testified by her mate, increased to 60 miles an hour; while her master estimated 65 to 75 miles an hour. She hauled S.-E. under check for the lee of the south shore at 9:35 a- m. The wind abated when the steamer arrived off Ashtabula, from whence there was good weather to Buffalo-, where she arrived at 3:50 a. m., October 15,1927. Her master filed a protest and notified libelant of the ship’s downward travail. In January, following, her hatches were opened, and the grain, mostly in No. 10 hatch on her starboard side, was found moist and heated, as already mentioned, and pyramids of grain were found on the starboard side of the hatches; their points being underneath the spar deck between the ends 'of the hatches and the starboard side of the ship. Some water, the proofs show, bad come under the battens between the tarpaulin and combings, but none by way of the hatches. Sweeney, the underwriters’ surveyor, testified that the water damaged the cargo from straining and leaking butts and seams. Afterwards, 12,000 rivets were replaced in seams and butts of H, J, and K strakes on her starboard side, and 8,000 rivets on her port side, 500 rivets in the deck, and 25,000 lineal feet of caulking in hull and deck, together with repairs to combings, deck stringers, and butts were deemed necessary. The ship had been tested and examined in the spring of 1927, five months before the mishap by the superintendent of the Buffalo Marine Construction Company, the surveyors for the hull underwriters, and by United States Inspector Boggan, and she was certified seaworthy. MeGinley, of the construction company, testified .that he examined the Robbins after she was repaired at this time and found her in proper seaworthy condition for carrying grain; that he did not apply a hammer test to the rivets, but explained that, since she had just prior to the examination unloaded a grain cargo, he could tell whether the rivets were loose, for, if they were impaired, the water, he said, would have come through and either held portions of the grain at such points or streaked the side of the hull white on her gray-painted background. Daniels, a marine surveyor, surveyed the ship in the spring of 1927, for the hull underwriters, and in fact directed her repairs, and he again surveyed her in the spring of 1928, after her arrival with the grain cargo in question; and he expressed the opinion, in answer to a hypothetical question, that her condition at such time and the damage to the grain were due to stress of weather. Boggan also testified that the ship was tight, staunch, and seaworthy, and further that the loose rivets, discovered after her downward trip, were not loose or impaired the previous spring when she was examined.

Libelant contends that a windstorm blowing 65 miles to 75 miles an hour is not extraordinary or unusual on the Great Lakes in the fall of the year, and that such a storm should have been anticipated. It is not claimed, as I understand it, that the storm was of “catastrophic proportions” or “extraordinarily terrific”; but that the storm was unusually violent, and in fact started the butts and opened the seams of the steamship and entered the cargo-, is clearly evidenced. In The Warren Adams, 74 F. 413, it was said by the Circuit Court of Appeals for-this circuit: “ ‘Perils of the sea’ mean ‘all marine casualties resulting from the violent action of the elements, as distinguished from their natural, silent influence upon the fabrie of the vessel; casualties which may, and not consequences which must, occur.’ ” Proctor for libelant, in support of his contention, attaches importance to the decision in The Rappahannock, 184 F'. 291, 294, wherein Judge Lacombe, writing for the Circuit Court of Appeals, after describing the character of the gale, said: “That the * * * wind and sea which, were not unusual at that season of the year. Seaworthiness imports ability to meet such conditions.” But I think the facts in that case were different from the facts here. There the damage was attributable to a crack in the main feed pipe running through the cargo space between the boiler and engine. The pipe contained in the box had not been renewed for eleven years, and had not been thoroughly inspected for more than a year, and the learned judge therefore determined that the real’ cause of the damage did not eventuate from the dangers of navigation, but was due to the defective pipe which rendered the vessel unseaworthy.

In the instant case, as already pointed out, it is fairly established that the stress of the storm severely strained the ship, letting in the sea on the sides of the vessel and at other points, and that the ship was fit at the inception of the voyage.- There are numerous adjudications that hold that admission of sea water under stress of weather is not unseaworthiness, especially when it appears that, as in this case, a careful inspection of the ship, visual and otherwise, was made by the agents of the underwriters and others before the voyage began. The Sandfield (C. C. A.) 92 F. 663. She need not be in perfect condition. Hamilton v. U. S. (C. C. A.) 268 F. 15. And “seaworthiness involves no more than a reasonable fitness for the purposes of the voyage.’’ In re Gravel Products Corp. (C. C. A.) 24 F.(2d) 702, 703. Reasonable diligence, I find, was exercised in this particular. See The Jane Grey (D. C.) 99 F. 582-, 583. Although the majority of ,the rivets were probably as old as the ship, inspection uncovered no impairment. Even without the hammer test, the condition of the rivets was discoverable, and, as testified by MeGinley whose testimony is not contradicted, they were not loose when the voyage began. It is not customary to hammer the rivets o-f the entire ship, libelant’s surveyor testified, aside from hosedesting it, to ascertain whether rivets were weakened or loose. Indeed, the steamer had 400,000 rivets and to hammer test them all would have been impracticable and unnecessary, especially as another satisfactory test was available, and reasonable diligence exercised in making it.

Inasmuch as the respondent was bailee to transport the grain as a private carrier for hire, the full capacity of the ship having been chartered, the burden rested upon libelant to show that the vessel was unseaworthy prior to the shipment or that there was negligent inspection. The C. R. Sheffer (C. C. A.) 249 F. 600; The Oakley C. Curtis (C. C. A.) 4 F.(2d) 979; The Nordhvalen (D. C.) 6 F. (2d) 883. This has not been shown.

The burden of proof that the sea water damaged the cargo because of perils of the sea rested upon respondent, and in my opinion this burden has been satisfied. The Folmina, 212 U. S. 354, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; The Charlton Hall (D. C.) 285 F. 640. And, since I have concluded, after consideration of the record in its entirety, that the ship was seaworthy and the damage caused by dangers of the sea, and that respondent exercised due diligence in properly outfitting the steamer for grain transportation, I hold that she was exempt from liability under the bill of lading and the provisions of the Harter Act (46 USCA 190-195). Findings of facts and conclusions of law under new Admiralty Rule 46% (28 USCA § 723), effective October 1, 1930, may be submitted, if deemed necessary.

- Decree for respondent, with costs.


source: Caselaw Access Project

author: WOOLSEY, District Judge.

license: Public Domain

text:
    In re TOBIAS et al.
    District Court, S. D. New York.
    May 6, 1931.
    Burhstine & Geist, of New York City (Irving Schwab, of New York City, of counsel), for the motion.
    Matthew Lilling, of New York City, opposed.
   WOOLSEY, District Judge.

The certificate and report of the referee is in all respects confirmed, and the recommendations thereof are approved.

I. Of the three specifications filed in opposition to the discharge, under section 14a and section 14b of the Bankruptcy Act as amended (11 USCA § 32), the referee has sustained only one, which was that the bankrupts had filed a false financial statement for obtaining credit.

The Bankruptcy Act was amended on May 27, 1926 (section 6), inter alia, as to section 14 thereof. This section now provides, in so far as it is relevant to the referee’s finding on his certificate, as follows (italics mine): “(b) The judge shall hear the application for a discharge and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest, at such time as will give the trustee or parties in interest a reasonable opportunity to be fully heard; and investigate the merits of the application, and discharge the applicant, unless he has * * * (3) Obtained money or property on credit, or obtained an extension or renewal of credit, by making or publishing, or causing to be made or published, in any manner whatsoever, a materially false statement in writing respecting his financial condition; * * * Provided, That if, upon the hearing of an objection to a discharge, the objector shall show to the satisfaction of the court that there are reasonable grounds for believing that the bankrupt has committed any of the acts which, under this paragraph , (b), would prevent his discharge in bank-1 ruptey, then the burden of proving that he ¡ has not committed any of such acts shall be upon the bankrupt. * * *" ”

II. The attorney for the bankrupts, citing eases decided before this amendment, contends that the referee erred in his conclusions and his consequent recommendations. I do not agree. I think the referee was right.

On the facts shown, the burden was cast on eaeh bankrupt of showing that he was not guilty of ‘the ground for refusal of his discharge set forth in the second specification. .This burden fell with as much weight on Mil'ton Tobias, the alleged less active partner, as .it did on Morris Tobias, the more active partner.

A discharge from his debts is' accorded to a bankrupt, and it is a sine qua non, in my opinion, that he should exhibit the utmost Candor when his right to discharge is challenged as it was here.

The 1926 amendment of the Bankruptcy Act recognizes this fact, and requires the "bankrupt to exculpate himself from the charges instead of leaving the burden on the-trustee to convict him thereof, which was the situation under the law previous to 1926. Cf. In re Simon Weltman & Co., 2 F.(2d) 759, 761 (U. S. D. C. S. D. N. Y. 1924).

Settle order on two days’ notice.


author: CAFFEY, District Judge.

text:
    THE KATHERINE E. ORR.
    District Court, S. D. New York.
    Jan. 5, 1931.
    Otto & Lyon, for libellant.
    Macklin, Brown, Lenahan & Speer, for claimant.
   CAFFEY, District Judge.

If the suit be for salvage, it is barred by two years’ limitation prescribed for bringing it, unless the court be satisfied that the delay is excusable because of unavailability of the ship for arrest. 46 USCA § 730.

It is not necessary to determine whether the statutory period is tolled by filing of the libel, issuance of process, or seizure of the ship, because, whatever the test, it was conceded at the argument that no step was taken i to enforce the claim sued on until more than two years after the cause of action accrued. So also there is no occasion to pass on libel-ant’s explanation for postponing litigation so long. The matter can be disposed of on another ground.

Inspection of the libel makes clear that the libelant may not be, and certainly indicates that it is not, seeking salvage. Apparently right of recovery rests on repairs. That being true, the face of the pleading furnishes no warrant for dismissal. It is true that the caption of the libel labels it as for salvage; but that is not conclusive.

Upon the merits as to whether the ease relates only to salvage (The Neshaminy [C. C. A.] 228 F. 285, 288, 289), and, if so, as to whether the suit is too late, there will be adequate opportunity to raise the issues by answer.

Motion denied, with leave to strike out “salvage” and substitute “contract” in the caption of the libel.


author: BARRETT, District Judge.

text:
    In re MITCHELL.
    District Court, S. D. Georgia, Savannah Division.
    March 9, 1931.
    Melntire, Walsh, & Bernstein, of Savannah, Ga., for bankrupt.
    Abrahams, Bouhan, Atkinson & Lawrence, of Savannah, Ga., for intervenor.
    George T. Cann and Anderson, Cann & Cann, all of Savannah, Ga., for Chatham County tax claim.
   BARRETT, District Judge.

At the time of the bankruptcy of Mitchell, a valid debt secured by a security deed on real estate for $7,000 principal was held by Garity. After bankruptcy, Garity petitioned the bankruptcy court to abandon the real estate to him. This was declined, and the trustee held the property for eleven months, during which time the net rents were $519. During such eleven months there accrued city taxes of $67.47, state and county taxes, $56.60, water rent, $6, fire insurance premium, $162.15, and the interest accumulation was in excess of $500. The property was finally abandoned to the mortgagee and was sold for $6,000, leaving a deficit in excess of $1,000. The advertisement of the sale by the trustee under the security deed provided that “tax liens for which the property described is liable, to follow the property.” The referee ordered paid the insurance premium and water rent, but declined to authorize the payment of the taxes on this particular property.

Garity contends (a) that the entire net proceeds of the rent accruing after the possession of the property was refused to him should be turned over to him, namely, $519; and (b) that in any event the taxes should be paid as well as the insurance premium and water rent.

This case is controlled by the decision of the Circuit Court of Appeals of the Fifth Circuit in Robertson v. Goree, 29 F.(2d) 261. Applying that decision to the case at bar, Garity is entitled to have the $519 net rent applied to the payment of the taxes, water rent, insurance premium, and the balance to him.

The fact of the stipulation in the advertisement that the “tax liens for which the property described is liable, to follow the property” is in no way controlling. The essential fact is that Garity was injured by the bankruptcy court erring in the conclusion that there was an equity in the property for the general creditors and declining to abandon the property at that time. Subsequent developments proved that Garity was entitled to the property at that time, and the general creditors should not be the beneficiaries of rents that ought to have gone to Garity.

Let a judgment be taken in conformity to this opinion.


author: CAMPBELL, District Judge.

text:
    CUNO ENGINEERING CORPORATION v. HUDSON AUTO SUPPLY CO. Inc. (CONNECTICUT AUTOMOTIVE SPECIALTIES CO., Intervener).
    No. 3820.
    District Court, E. D. New York.
    Sept. 4, 1930.
    Robert Starr Allyn, of New York City, for plaintiff.
    Janney, Blair & Curtis, of New York City, for defendants.
   CAMPBELL, District Judge.

This is a motion for a rehearing and for leave-, to amend answer.

This case was tried before me in May, 1929, and the decree was entered on August 5, 1929, more than one year before this motion was made, and no appeal was taken from the decree.

The defendants, having lost their case on one theory, now seek to try it on another.

This cannot be allowed, if trials are to conclude anything. Hicks v. Ferdinand (C. C.) 20 F. 111; Corrugated Paper Patents Co. v. Paper Working Mach. Co. (D. C.) 237 F. 391; Landis Tool Co. v. Ingle (C. C. A.) 286 F. 5.

Neither the ease of Simmons Co. v. Grier Bros. Co., 258 U. S. 82, 42 S. Ct. 196, 66 L. Ed. 475, nor Kerner Incinerator Co. v. Townsend Estates (D. C.) 27 F.(2d) 599, 602, cited on behalf of defendant, is in point, as in those cases the petition for rehearing was filed without unreasonable delay, while in the case at bar that is not the fact, as there has been a delay of over one year and the accounting has been proceeding for some time.

The whole question involved in this suit has been fully litigated, both in this court and in the arbitration which was had prior thereto.

The present counsel for the defendants have been in this ease since early this year, and have appeared before me with reference thereto before this motion was made, with_ no suggestion of a reargument or a rehear-1 ing.

All of' the patents which the defendants seek to set up were before the arbitrators, except Kretzer, No. 699,761, and Foreman, No. 884,142, and a proper search would have revealed them if they are proper references, but the defendants on the trial deliberately waived any attack on the validity of the patent, and it is too late at this time to obtain a new trial on evidence of which the defendants were aware, or with reasonable diligence could have ascertained.

Defendants’ motion proposes to bring in six references showing anticipation, but on the argument and in their brief refer only to Kretzer, No. 699,761, which I must assume they consider their best reference, and after examination of that patent I am convinced it does not anticipate.

The construction of Kretzer was for an entirely different purpose.

It was not related to cigar lighters, and does not show a coil-receiving recess, nor any central wire passage; on the contrary, the central hole is intended for a mounting screw.

The motion is denied.


author: AUGUSTUS N. HAND, Circuit Judge.

text:
    CUNO ENGINEERING CORPORATION v. HUDSON AUTO SUPPLY CO., Inc. (CONNECTICUT AUTOMOTIVE SPECIALTIES CO., Intervener).
    No. 316.
    Circuit Court of Appeals, Second Circuit.
    April 20, 1931.

      Janney, Blair & Curtis, of New York City (Laurence A. Janney, Edward T. Curtis, and John W. Thompson, all of New York City, of counsel), for appellants.
    Robert S. Allyn, of New York City (Edward S. Higgins, of New York City, of counsel), for appellee.
    Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
   AUGUSTUS N. HAND, Circuit Judge.

In the above suit the defendants were held to infringe United States letters patent No. 1,460,095, and on August 8, 1929, an interlocutory decree was granted enjoining them from infringing the patent. No appeal was taken by the defendants from this interlocutory decree, but on August 14, 1930, over one year after its entry and after the accounting before the master had been proceeding for some time, they gave notice of a motion for a rehearing, because of newly discovered prior patents and misapprehension as to defendants’ rights. The only reason given for such a belated application to reopen the case was a change of counsel since the trial and a supposed misapprehension on the part of former counsel as to defendants’ rights and failure to discover two prior patents thought to show invalidity of the patent in suit. On August 22, 1930, they also served notice of a motion to dissolve the injunction contained in the interlocutory deeree.

Judge Campbell held that the motion for a rehearing should be denied because of laches and because, upon the original trial, the defendants did not question validity. In his opinion he also said that he was convinced that the new reference most relied on as a ground for reopening the case did not anticipate United States patent No. 1,460,095. He-accordingly made the order denying both motions, which is sought to be reviewed here, so far as it refused to dissolve the- injunction. 49 E.(2d) 654.

The question at the outset is whether we have any jurisdiction to entertain an appeal. It is true that we have already denied a motion to dismiss, but our decision was without consideration of briefs on the question of jurisdiction which have been submitted on this appeal. We are now convinced that the objections to an appeal from the order are conclusive. The appealability of the order before us is governed by section 129 of the Judicial Code (28 USCA § 227), which provides as follows:

“Where, upon a hearing in a district court, * * * an application to dissolve or modify an injunction is refused, * * * an appeal may be taken from such interlocutory order or decree to the circuit court of appeals.”

It is settled that an appeal will not lie from an order denying a motion to open a decree and grant a rehearing. Roemer v. Bernheim, 132 U. S. 106,10 S. Ct. 12, 33 L. Ed. 277; McMickens v. Perin, 18 How. 507, 15 L. Ed. 504; Magnetic Mfg. Co. v. Dings Magnetic Separator Co. (C. C. A.) 37 F. (2d) 709; Willis v. Davis (C. C. A.) 184 F. 889.

Here the interlocutory deeree holding the patent valid and infringed stood. The time to appeal had expired, and the decree could only be attacked by reopening the case. Leave to reopen was refused, so that a motion to dissolve the injunction in the face of that denial was mere brutum fulmen. In other words, the motion to dissolve was futile until the deeree was reopened, and was so far dependent upon the motion to grant a rehearing that it should be similarly treated as regards the right” to appeal from a denial of it. The Circuit Court of Appeals o£ the Fourth Circuit thus ruled in Baker v. Walter Baker & Co., 83 F. 3, 5 (certiorari denied, 168 U. S. 712, 18 S. Ct. 939, 42 L. Ed. 1214), where the facts were like the present. Judge Simonton there said:

“Coupling the motion to dissolve the injunction with the petition for a rehearing of the ease was, in effect, a motion, to rehear the decree upon the issuance of the perpetual injunction. The refusal of the court to reconsider and rescind its action in this .regard was- conclusive of the matter, and is not appealable. * * * Were this not true, a party against whom a perpetual injunction has been issued after a full hearing on the merits can interrupt the references taken under the decree by a motion to dissolve, and bring the ease up into this court at any time it suits its convenience.”

The decisions in Wisconsin-Minnesota Gas & Elec., etc., Co. v. Hirschy Co. (C. C. A.) 28 F.(2d) 838, Monroe Body Co. v. Herzog (C. C. A.) 13 F.(2d) 705, and Louis Metzger & Co. v. Berlin (C. C. A.) 194 F. 426, are not in point, for in each of them there was an attempt to determine, the scope of the injunction as to certain devices put out by the defendant since the making of the decree. The decisions upon such proceedings resembled in effect decrees after filing supplemental bills. In other words, there was essentially more than a motion for a rehearing, as was not the case here. Accordingly appeals were allowed.

In American Grain, etc., Co. v. Twin City, etc., Co. (C. C. A.) 202 F. 202, a preliminary injunction had been granted, and there was a motion to dissolve on different facts. The court held that such an application came within section 129 of the Judicial Code (28 USCA § 227), and that the order granted upon new affidavits was appealable. It was not necessary to reopen a decree as here. In Ex parte Harley-Davidson Motor Co., 259 U. S. 414, 42 S. Ct. 527, 66 L. Ed. 996, the Supreme Court held that an interlocutory decree of a District Court adjudging a patent valid and infringed but granted pro forma without passing upon the merits was appeal-able under section 129, and said that the proper remedy was not to dismiss, thus leaving the injunction standing, but to remand for further proceedings. That decision does not, in our opinion touch a ease like the present, where the motion to dissolve added nothing to the motion for a rehearing so long as the latter motion was denied.

We may "add that in our opinion Judge Campbell should clearly have denied the motion for a rehearing because of laches.

- The appeal is dismissed.


author: WILLIAMS, Judge.

text:
    WASHINGTON CLUB v. UNITED STATES.
    No. H—209.
    Court of Claims.
    Feb. 10, 1930.
    LITTLETON, Judge, dissenting.
    The Washington Club, plaintiff, sues to recover taxes paid to the Commissioner of Internal Revenue for the years 1922, 1923 ■ 1924, 1925, and 1926 on dues and initiation fees for its members.
    The question at issue is whether or not plaintiff is a social club within the meaning of the revenue acts of 1921,1924, and 1926.
    This ease having been heard by the Court of Claims, the court upon the report of a Commissioner and the evidence, makes the following special findings of fact:
    1. The plaintiff is a club duly incorporated in 1891 under the laws of the District of Columbia. The objects of the club, as stated in the original charter, have been “The establishment, maintenance, and management of a elnb for literary purposes, mutual improvement, and the promotion of social intercourse.”
    2. The plaintiff paid to the collector of internal revenue, Baltimore, Md., as the tax on the yearly dues of its members and as a tax on initiation fees, in accordance with section 801 of the Revenue Act of 1921 (42 Stat. 291) and section 501 of the Revenue Acts of 1924 and 1926 (43 Stat. 321, 44 Stat. 92), the following sums:
    Por the year 1922................$1,476.12
    Por the year 1923................>1,539.11
    Por the year 1924................ 1,533.04
    Por the year 1925................ 1,542.49
    Por the year 1926 for first five
    months....................... 1,397.34
    7,488.10
    3. On June 21, 1926, the plaintiff filed with the Commissioner of Internal Revenue the claim for refund of said payments totaling $7,488.10. The Commissioner rejected said claim for refund on March 31, 1927.
    4. The plaintiff has at all times borne true allegiance to the government of the United States and has not in any way voluntarily aided, abetted, or given encouragement to rebellion against the government of the United States. The plaintiff is the sole owner of this claim and has not sought redress in the courts or before Congress prior to this action.
    5. There are approximately 600 members, classified as life, debenture, resident, and nonresident. Literary or artistic qualifications are not stated in the constitution and by-laws as necessary to admission. The membership is limited to ladies.
    6. The club membership is composed of women with literary and musical inclinations and talents, also of artists, lecturers, and research workers. Among the members are found the wives of Army and Navy officers, wives of Members of Congress, and of leaders in every walk in life.
    7. The club property was acquired- in a trade of properties at a valuation of $109,-950, has increased in value, and for taxation purposes the land is now appraised at $30 a foot, and the improvements at $66,000.
    8. The furniture and equipment are carried at a valuation of $1,800. Some items, such as pictures, tables, rugs, and piano, are borrowed. The club building contains 23 rooms. The ground floor consists of an entrance hall, fronting on K street, ladies’ dressing room, and two small reception or cloakrooms, to the rear of which are quick kitchens, pantries, storerooms, and servants’ 'dining room. There is also a stairway _en-^ trance on Seventeenth street leading to the second floor of the main building, flanked by cloakrooms and reaching to the assembly hall. At the top of the El street stairway there is a large parlor or drawing room running the full length of the Seventeenth street dimension of the building. Across the K street frontage there is another large room where the board of managers meet. On the second floor, just at the head of the stairs, is a somewhat smaller room, generally called the dining room, through which ingress is had to the assembly hall. On the third floor the library is located in two rooms of the same size as the drawing room and board of managers’ room mentioned above, an office for the librarian, and four bedrooms with necessary toilet and storage facilities. On the fourth floor are five other bedrooms, one being a divided room; the entire building is suitably furnished.
    There are eight bedrooms, one used by the treasurer-manager, one by the secretary, one by the servants, and a divided room used by an old lady from Boston, the rest being used by transient members or their guests, but not being used constantly. In the fall, when members are returning to town and before opening their houses, the rooms are used more than at other times.
    9. There is a small elevator reaching as far as the third floor, on which the library is located. The library, easily and quickly accessible either by the stairway or elevator, appears fully equipped for quiet, comfortable reading and research. There are more than 6,000 volumes handily arranged, classified, indexed, and catalogued; works of fiction comprise about one-third of the-club library, and purchases of new fiction are about equal to purchases of nonfiction. It is an organized library. There has been a paid librarian, not a member of the club, during the past 21 years. Her salary was $82 per month, besides which she received lunches, dinners, uniforms, a months’ vacation with pay, and various other perquisites. There always has been a library committee composed of 10 or more members which devotes considerable time to planning and carrying out the activities of the library. In addition to using a large space for the care and handling of the library, the club expends approximately $600 yearly for the purchase of new books. The expense of the library for the year 1928 was “a little over $1,700.” The library “cost over $1,500 in 1926, and in 1927 the library cost $1,600.” Members are permitted to withdraw books from the library. Books of fiction may be kept out one week; nonfiction, ’ two weeks. There is a popular demand for nonfiction books. Once a month the library committee makes a selection of new books to be added to the library. Twenty-seven magazines are paid subscriptions by the club, and several magazine subscriptions, also many books, including private collections, are donated.
    The books in the library are classified as follows:
    Fiction ......’......................2,030
    Literature......................... 500
    French classics................. 500
    Biography.................... 950
    Travel .. i......................... 390
    History........................... 290
    Art............................... 75
    Drama............................ 187
    Poetry............................ 165
    Religion.......................... 90
    Miscellany........................ 180
    War books......................... 270
    Reference......................... 140
    Carpenter case of noted women....... 331
    The library is an important feature of the club, and its rooms are much frequented by members engaged in research work as well as those interested in general reading. Many literary people not members of the club use the facilities of the library and the Literary Society of Washington holds its meetings there. Many members of the club are also members of the Literary Society of Washington.
    10. Two bridge clubs, known as the Ell-well and Trophy Clubs, each comprising about 30 members, exist within the club; they have nothing to do with the club proper, except that the bridge players are members of the club and they pay for the uSe of the room and for the tea and refreshments afterwards. Perhaps 8 or 10 tables are used, and there is nothing in the testimony to show how often or seldom they play.
    11. The club does not maintain a restaurant or serve meals regularly, although meals can generally be provided except on Tuesdays, if ordered in advance; some of the cooking being done in the club and some prepared by caterers from the outside. Break-, fast may be obtained by members or guests staying in the club bedrooms. The club has no lunchroom, maintaining the kitchen for the use of the personnel of the club. There is a profit of several hundred dollars a year from club luncheons. A charge is made for all luncheons, whether for guests or members.
    12. All portions of the club building, except the library and treasurer’s quarters, may be rented. There is an established rate of rentals. Members, some of the oldest users of the club premises, and those who use it regularly are given a slightly reduced rate. The rents amounted to $6,173.53 from January 1 to December 31, 1928. The renting of the elubrooms is for the purpose of revenue entirely. Many of the leading civie and patriotic organizations of the city of Washington use the facilities of the elubrooms for their regular weekly or monthly meeting for which they pay the established rate of rentals. Among the various organizations renting and using the facilities of the club during recent years, are the D. A. R., George Washington University Alumni, the Literary Society, South Carolina State Society, Georgia State Society, Society of Lafayette, Society of Natives of the District of Columbia, Massachusetts State Society, Audubon Society, the Political Study Club, and other similar organizations.
    13. The net profit accruing to the club for the year 1928, including all revenues derived from initiation fees, dues of members, rental, and profits realized from luncheons, teas, etc., was. the sum of $32.27.
    14. Guest cards are issued by the library committee, for which a charge of 50 cents is made for each guest. Many guest cards are issued for the regular Tuesday morning lectures. These guest cards bring in a small revenue to the club, afford nonmembers an opportunity of hearing the lectures, and help in increasing and recruiting the membership of the club.
    15. The club- sponsors and supports a course of instruction in foreign languages, including French, Italian, and Spanish. This club activity, started during the World War, has proven to be very popular with club members, and is well supported; classes sometimes including as many as 35 or 40 persons. The language instructors are usually foreign bom. A charge of $5 for 10 lessons is made to club members and $6 for 10 lessons to nonmembers; the extra dollar paid by nonmembers being used to defray expenses,, such as light, heat, etc. In connection with the French classes, a French tea is given every year, at which the use of the French language is compulsory. The play or other entertainment for the evening is in French. French poetry is recited, and an effort is made to keep the event as strictly French as possible.

      16. Every New Year’s Day the club gives a reception in the late afternoon to members and guests, which is a dignified formal affair. During the Christmas holidays and Easter holidays each year a tea 'dance is arranged for the sons and daughters of members, for which a charge is made for the purpose of revenue. These affairs are not well attended.
    17. From the very beginning the club has conducted on Tuesday mornings of each week an announced lecture. These lectures are the outstanding activity of the club and are always largely attended. Many persons, not members of the club, are given guest cards and permitted to attend the lectures. After the lecture the members engage in a general discussion of the lecture. Simple refresh: ments are served gratis, consisting of a cracker or small sandwich, or doughnut, coffee or tea, not a luncheon. No luncheon is served at the club on that day because of the large crowds. A committee arranges these Tuesday morning events. Lectures are given on a wide range of subjects, a list being in evidence for all given during the period from 1920 to 1928. Musical clubs of Washington are sometimes procured for the Tuesday morning programs. The programs consist of classical music only, interspersed usually with instructive talks on various musical instruments and the technique of music generally. Lectures are also given on political science, psychology, economics, constitutional history, biography, travel, etc. During recent years many eminent men and women, in almost every branch of learning, have appeared and given lectures before the club membership.
    18. Miss Clara McQuown conducts an annual course of 20 to 22 talks or lectures on national and international affairs, under the general title of current history. They are given on Friday morning at the club, sponsored and encouraged by the club, announced in the club bulletins, and the club affords the • use of the assembly hall without rental, furnishes a butler and other facilities, and the lectures are open generally to anyone who cares to come. A number of tickets are also given to people interested in particular subjects who could not otherwise afford to come-During the first two years the talks were given in the afternoon also, for the benefit of those who are employed and unable to come in the morning and notices are sent from the Department of Education by Assistant Superintendent Haycock to the various schools in the District, and the lectures are attended very largely by teachers. The morning attendance is between 40 and 80. The charge is nominal, $6.50 for 15 lectures; single admission, 65 cents.
    19. The club is registered in the Social Register as one of those clubs to which the subscribers to the Register belong.
    20. In many cases the club has encouraged young musicians and young artists by furnishing a platform, although it does not give any scholarship.
    21. The Washington Club has never allowed the use of its platform for propaganda purposes. Its purpose is and has been to sponsor activities and put on programs educational in their nature. Aside from the regular course of lectures, it endeavors each month to feature a program of special literary merit, one entirely musical, one where pictures along educational lines are the main feature, and another' in harmony with the other three. These regular monthly events are very popular and are also largely attended.
    The Washington Club platform is well known and established. Many requests are received from lecturers and speakers to be permitted the use of its platform. These requests are carefully scrutinized and are accepted or rejected as they do or do not come within the educational and cultural purposes and activities of the club.
    22. The plaintiff club does not give regular dances, except in the case of one or two tea dances a year for the younger people of the, members’ families. The clubrooms, however, may be rented by members or outsiders for dances, teas, and other entertainments.
    23. The predominant purposes of the Washington Club are the improvement of its members along educational and cultural lines, and its main activities are conducted with a view to the accomplishing of such purposes.
    F. Regis Noel, of Washington, D. C., for plaintiff.
    Fred K. Dyar, of Washington, D. C., and Herman J. Galloway, Asst. Atty. Gen. (McClure Kelley, of Washington, D. C., on the brief), for the United States.
    Before BOOTH, Chief Justice, and WILLIAMS, GREEN, GRAHAM, and LITTLE-TON, Judges.
   WILLIAMS, Judge.

Plaintiff sues tore-cover taxes paid for the years 1922, 1923, 1924, 1925, and the first five months of 1926, on the initiation fees and dues of its members. The taxes were collected under the provisions of section 801 of the Revenue Act of 1921 (42 Stat. 291) and section 501 of the Revenue Acts of 1924 and 1926 (43 Stat. 321, 44 Stat. 92).

Section 801 of the Revenue Act of 1921, 42 Stat. 291, reads:

“That from and after January 1, 1922, there shall be levied, assessed, collected, and paid, in lieu of the taxes imposed’ by section 801 of the Revenue Act of 1918, a tax equivalent to 10 per centum of any amount paid on or after such date, for any period after such date, (a) as dues or membership fees (where the dues or fees of an active resident annual member are in excess of $10 per year) to any social, athletic, or sporting club or organization; or (b) as initiation fees to such a club or organization, if such fees amount to more than $10, or if the dues or membership fees (not including initiation fees) of an active resident annual member are in excess of $10 per year; such taxes to be paid by the person paying such dues or fees: Provided, That there shall be exempted from the provisions of this section all.amounts paid as dues or fees to a fraternal society, order, or association, operating under the lodge system. In the ease of life memberships a life member shall pay annually, at the time for the payment of dues by active resident annual members, a tax equivalent to the tax upon the amount paid by such a member, but shall pay no tax upon the amount paid for life membership.”

Section 501 of the Revenue Acts of 1924 and 1926 is substantially the same as the section-above quoted of the act of 1921.

The defendant offered no testimony necessitating a consideration of the ease on the evidence adduced on behalf of the plaintiff.

The sole issue presented is whether the plaintiff club was properly classified by the Commissioner of Internal Revenue as a social club within the meaning of the acts under which the taxes were imposed.

Article 5 of Treasury Regulations promulgated for the administration of the revenue acts imposing the taxes in question reads:

“Any organization which maintains quarters or arranges periodical dinners or meetings, for the purpose of affording its members an opportunity of congregating for social intercourse, is a ‘social * * * club or organization/ within the meaning of the act, unless its social features are not a material purpose of the organization, but are subordinate and merely incidental to the active furtherance of a different and predominant purpose, such as, for example, religion,,the arts, or business.”

In the Aldine Club v. United States, 65 Ct. Cl. 315, the court said:

“And though there may be social features incident to its general activities, yet if the social feature is a subordinate and merely incidental feature to the ‘predominant’ purpose of the organization, it is not a social club. This must be true unless all clubs where people congregate are social clubs, ‘because practically all clubs may be said to have a feature of the social, using the term as having to do with human intercourse.’ ”

The purposes of the Washington Club as stated in its charter are:

“The establishment, maintenance, and management of a club for literary purposes, mutual improvement, and the promotion of social intercourse.” .

The membership of the club is limited to ladies and now numbers about 600. The club owns its own quarters, an old but substantial building, formerly a residence, located at the intersection of Seventeenth and K Streets ISf. W., in Washington. It is comfortably but not luxuriously furnished.

The club does not maintain a restaurant and does not regularly serve meals to its members. Breakfasts, luncheons, etc., can usually be had if ordered in advance, but they are not a regular feature of the club’s activities, and when sueh are furnished it is solely with a view of obtaining revenue, and not “for the purpose of affording members an opportunity of congregating for social intercourse."

The main activities of the club center in the library and its use by members and in the regular Tuesday morning lectures.

The library consists of about 6,000 volumes. It is carefully selected and contains standard works on practically every subject. It is patronized by members engaged in research work as well as by those who seek improvement in the general study and reading of books and magazines.

The outstanding feature of the club’s activities is the* regular Tuesday morning lecture. These lectures are largely attended and have given the club a wide reputation as an educational and cultural organization. The lectures cover a wide range of subjects and have brought to the club platform many eminent men and women, recognized authorities on the subjects discussed by them. While occasionally lectures are given on popular and entertaining subjects, they are the exception, and the lectures in the main are educational in character.

In addition to the regular Tuesday morning lecture, the club each year arranges a seríes of lectures, about 22 in number, on current events. In these lectures current topics ■of national and international interest and importance are discussed. These lectures are given on Driday mornings and are frequently repeated in the afternoon for the benefit of members and nonmembers who are not able to attend the morning lecture.

Announcement of these lectures is made in the schools of the District and many teachers avail themselves of the opportunity to attend. The evidence shows these lectures are very popular, are largely attended, and have been of great educational value.

Another activity of the club is the foreign-language classes which it sponsors. Lessons are given in Drench, Italian, and Spanish. These classes are open to nonmembers ■as well as the members, a fee being charged each person to pay the teachers and defray ■expenses.

Competent teachers, foreign -bom as a rule, are employed, and classes are maintained both for beginners- and for students more advanced. Conversational and grammar practice courses are maintained. A Drench tea is given each year by the classes •studying the Drench language, and a play is ■put on where Drench is exclusively spoken. The foreign-language classes have proven a ■very popular activity of the, club, and many people, club members and others, have availed -themselves of the opportunity offered to gain a knowledge of one or more foreign language.

It is true the Washington Club has certain social features, such as its annual New Year’s reception to members and guests, and the tea dances which its members give for their sons and daughters during the Christmas and Easter holidays, but these social features are clearly incidental and subordinate to the predominant purposes of the club.

This being true, the plaintiff club is not a social club within the meaning of section 801 ■of the Revenue Act of 1921 (42 Stat. 291) ■and section 501 of the Revenue Acts of 1924 and 1926 (43 Stat. 321, 44 Stat. 92). Aldine Club v. United States, 65 Ct. Cl. 315; Chemists’ Club v. United States, 64 Ct. Cl. 156; Bankers’ Club of America v. United States, No. K-145, 37 D.(2d) 982, decided to-day.

Section 3228 of the Revised Statutes, as .amended by section 1112 of the Revenue Act ■of 1926, 44 Stat. 9, 115 (26 USCA § 157), provides that claims for refund shall be presented to the Commissioner of Internal Revenue “within four years next after the payment of such tax, penalty, or sum.” The •claim for refund in this ease was filed with the Commissioner of Internal Revenue June 21, 1926, and as $1,280.41 of the total sum of taxes paid during the year 1922 was paid before June 21 of that year, or more than four years prior to the filing of the claim for refund, said amount of $1,280.41 is barred.

Plaintiff is therefore entitled to recover judgment in the sum of $6,207.69. And it is so ordered.

BOOTH, Chief Justice, and GREEN and GRAHAM, Judges, concur.

LITTLETON, Judge, dissents.


author: LITTLETON, Judge.

text:
    PEARSALL v. UNITED STATES.
    No. J-35.
    Court of Claims.
    May 4, 1931.
    Jesse I. Miller, of Washington, D. C., for plaintiff.
    Lisle A. Smith, of Washington, D. C., and Charles B. Rugg, Asst. Atty. Gen., for the United States.-
    Before BOOTH, Chief Justice, and LITTLETON, WHALEY, WILLIAMS, and GREEN, Judges.
   LITTLETON, Judge.

In this case it appears that on Mareh 25, 1912, plaintiff entered into a contract with the Burden Iron Company whereby that corporation, effective January 15, 1913, gave to plaintiff the exclusive selling agency for certain of its products for a term of three years with certain provisions for extension of the contract; that the contract was subsequently extended.

In the latter part of 1912 or early in January, 1913, plaintiff organized the Burden Sales Company, a corporation, and transferred his contract with the Burden Iron Company to the Burden Sales Company in exchange for the entire capital stock of $5,-000, par value, of the latter company. The sale and transfer of the contract to the Burden Sales Company was prior to January 15, 1913. On the last-mentioned date the Burden Sales Company began business and continued until on or after September 12, 1918, at which time it transferred the Burden Iron Company contract to the plaintiff in exchange for its entire capital stock. Whereupon plaintiff transferred and sold the contract to the Burden Iron Company for $77,000.

The Commissioner of Internal Revenue taxed the plaintiff for the year 1918 upon a gain representing the difference between the value which he determined the Burden Iron Company contract had on March 1,1913, and the amount of $77,000 which the Burden Iron Company paid the plaintiff for the contract on September 12, 1918.

Plaintiff instituted this suit to recover $31,779.16 on the ground that the March 1, 1913, value of the contract was $75,000, and, further, that 40 per cent, of the amount received for the contract from the Burden Iron Company belonged to and was paid to three others in the amounts of $15,400, $7,-700, and $7,700, respectively, and constituted a proper deduction from the total amount received from the Burden Iron Company in determining the profit derived by the plaintiff.

The Commissioner of Internal Revenue made his determination upon an erroneous basis, and the plaintiff in this suit likewise proceeds upon an erroneous basis. There is no way for the court to determine from the record whether or not plaintiff realized a taxable gain in 1918 upon the sale of the contract to the Burden Iron Company for $77,-000. The value of the contract on March 1, 1913, does not, under the law, enter into the gain derived by the plaintiff in 1918. He did not own the contract on March 1, 1913, nor at any time thereafter until September 12, 1918. Prior to January 15, 1913, plaintiff had sold and transferred the contract to the Burden Sales Company, Inc., a corporation, in exchange for its entire capital stock of the par value of $5,000. The corporation was therefore the owner of the contract on March 1, 1913. Prom January, 1913, to September 12, 1918, the contract was an asset of the corporation which entered into its invested capital. If the plaintiff realized a taxable gain in 1918, it was measured by the difference between the cost to him on September 12, 1918, of the contract transferred to him by the Burden Sales Company and the price at which he sold it to the Burden Iron Company on the same date. The record does not contain any evidence of such cost.

The ease is referred to a eommissionen of this court with leave to both parties to submit proof as to the gain, if any, derived by the plaintiff upon the sale of the contract on September 12, 1918, to the Burden Iron Company measured by the difference between the cost of the contract acquired on that date from the Burden Sales Company and the price received from the Burden Iron Company.


text:
    MUTUAL LIFE INS. CO. OF NEW YORK v. UNITED STATES.
    No. K-377.
    Court of Claims.
    May 4, 1931.
    ' Wm. M. Williams, of Washington, .D. C. (Frederick L. Allen, of New York City, on the brief), for plaintiff.
    Edward H. Horton and Lisle A. Smith, both of Washington, D. C., and -Charles B. Rugg, Asst. Atty. Gen., for the United States.
    Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
   LITTLETON, Judge.

Plaintiff instituted this suit August 29, 1929, to recover $372,814.97 with interest on $185,908.05 from September 14,1923, $185,-908.04 from December 14, 1923, and on $998.88 from December 21, 1926, representing an overpayment of income tax for 1922.

Defendant demurs to the petition on the ground: First, that it fails to state facts which constitute a cause of action against the United States; and, secondly, that the facts stated do not constitute a cause of action within the jurisdiction of this court.

The question is the sufficiency of a claim for refund filed August 2, 1927.

Plaintiff is a New York corporation engaged in the business of life insurance. In March, 1923, it filed an income-tax return as a life insurance company for the calendar year 1922, under the revenue act of 1921, showing a total tax liability of $743,632.21, which was paid in four installments of $185,-908.06 dn March 15 and June 15,1923, $185,-908.05 on September 14, 1923, and $185,-908.04 on December 14,1923. On September 21, 1926, plaintiff paid to the collector an additional assessment for 1922 of $5,473.31, together with interest thereon in the amount of $998.88. During 1922 plaintiff received interest from tax-exempt securities amounting to $4,798,178.66. In its return for that year, in computing the deduction claimed under section 245 (a) (2) of the Revenue Act of 1921 (42 Stat. 261), it followed the provisions of that section and the instructions of the Commissioner of Internal Revenue and subtracted from 4 per centum of the mean of its reserve fund required by law and held at the beginning and at the end of the taxable year said amount of tax-exempt interest, as shown on the return.

August 2, 1927, plaintiff filed with the Commissioner of Internal Revenue a claim for refund of $5,799.58, or such greater amount as might he legally refundable, of income tax paid for 1922. This claim is attached to the petition as Exhibit B and is made a part of this finding by reference. The basis of the claim was that for 1922 plaintiff had understated the 4 per cent, of the mean of the reserve funds by $46,396.64 resulting in an overpayment of tax in the ■amount of $5,799.58. In this claim it was stated in part that: “Under section 245 (a) (1) and (2) of the revenue act of 1921, in arriving at its net income, taxpayer is entitled under said subdivision (a) (l) to de- ■ duct from its gross income the amount of .interest received by it during the taxable year on tax-exempt securities, and under said subdivision (a) (2) to deduct ‘an amount equal to the excess, if any, over the deductions specified in paragraph (1) of this subdivision, of 4 per centum of the mean of the reserve funds required by law and held, at the beginning and end of the taxable year.’ « * t■» And, further, as the statement of facts relied upon by plaintiff in support of the claim it alleged an understatement of its reserves held at the beginning and the end o£ the taxable year 1922 “making 4 per cent of the mean of the reserve funds held at the beginning and end of the year 1922, $23,142,-642.35, as reported by taxpayer in said return, instead of $23,189,038.99, 4 per cent of the mean of said reserves as actually held by taxpayer at the beginning and end of said taxable year, making a difference in the deduction under section 245 (a) . (2) of the Revenue Act of 1921 of $46,396.64, and an overpayment by taxpayer of income tax for said taxable year 1922* of $5,799.58.” This claim for refund was considered and wholly disallowed and rejected by the Commissioner of Internal Revenue on September 3, 1927.

On June 4, 1928, the Supreme Court of the United States, in National Life Insurance Co. v. United States, 277 U. S. 508, 48 S. Ct. 591, 72 L. Ed. 968, decided that the provisions of section 245 (a) (2) of the Revenue Act of 1921 that only the excess of the 4 per cent, of the mean of the reserve funds over the amount of tax-exempt interest might he deducted was unconstitutional. By reason of this decision the Commissioner of Internal Revenue shortly thereafter voluntarily refunded to the plaintiff the amount of $5,-473.31, being the additional assessment paid on September 21, 1926, together with interest of $682.89. Checks for these amounts were received by plaintiff November 17,1928.

Shortly after the commencement of this suit, the commissioner .refunded to plaintiff the further sum of $998.88, being the amount of interest collected on September 21, 1926, upon the additional assessment aforesaid.

On December 27, 1928, plaintiff filed with the 'Commissioner of Internal Revenue a statement concerning its claim for refund filed August 2, 1927, which statement was based upon the decision in National Life Insurance Co. v. United States, supra, and requesting reconsideration of the refund claim and a further allowance to the extent of $371,816.09 in addition to the amount of $5,473.31 previously refunded. This statement is attached to the petition as Exhibit C and is made a part of this finding by reference. The additional amount which plaintiff requested the commissioner to allow in view of the decision in the National Life Insurance Company Case represented the tax paid within four years prior to the date of the filing of the claim on August 2, 1927, over the amount which the commissioner already had refunded. The commissioner di,d not reopen the claim of August 2 or reconsider his action denying it.

,J As a result of the reduction of the 4 per centum of the mean of plaintiff’s reserve funds for 1922 by $4,798,178.66, the amount of tax-exempt interest, in computing the deduction allowed to it under section 245 (a) (2) of the Revenue Act of 1921, the plaintiff overpaid its income tax for 1922 in the amount of $599,772.33.

From the foregoing facts it appears without dispute that plaintiff overpaid its tax for 1922 in an amount in excess of that wh'ieh it now seeks to recover. Plaintiff insists that, since its claim for refund of August 2, 1927, related to the computation of its reserve funds required by law and set forth facts specifically or by reference to the returns for 1921 and 1922 then in possession of the commissioner showing the amount of said reserve funds, the amount of tax-exempt interest and, also, the 4 per cent, of the mean of the reserve funds, it was a sufficient claim under the statute and the regulations to entitle the plaintiff to the refund of the over-payments made within four years prior to the filing thereof because of the decision in the National Life Insurance Company Case; that, if there was any insufficiency in the claim, it was a matter of form which was corrected by the statement of December 27, 1928; and that the commissioner was authorized and required to make the refund under said claim and since he refused to do so this suit may be maintained to recover the full overpayment made within four years prior to August 2, 1927.

The claim of August 2,1927, was made on the specific ground that the reserve funds at the beginning and the end of the taxable year were greatly in excess of the amounts reported by the taxpayer and determined by the commissioner and that, therefore, the 4 per cent, of the mean of these reserve fund's should be increased by $46,396.64, which would increase the deduction provided in section 245 (a) (2) of the 1921 act and residt in an overpayment of $5,799.58, refund of which was demanded. That claim cannot, therefore, be construed as a claim for refund on the basis of deduction of the full 4 per cent; of the mean of the reserve funds amounting to $4,798,178.66. In United States v. Felt & Tarrant Mfg. Co., 51 S. Ct. 376, 378, 75 L. Ed. -, decided April 13,. 1931, the Supreme Court held that one object of the requirements with reference to filing a claim for refund is to advise the appropriate officers of the demands or claims intended to be asserted so as to insure an orderly administration of the revenue; that the claim which the statute makes prerequisite to a suit obviously relates to a claim which'1 may be asserted by suit; and that quite-apart from the provisions of the regulations-the statute is not satisfied by the filing of a paper which gives no notice of the amount or nature of the claim for which suit is brought. Although the claim of August 2 stated certain facts with reference to the reserve funds^at the beginning and end of the taxable year from which the 4 per cent, of the mean of these reserve funds could be determined, they were stated, considered, and acted upon by the commissioner for an entirely different purpose than that upon which the plaintiff now relies. No claim for refund of the nature asserted in this suit was ever made to the commissioner until the application for reconsideration long after he had rejected the claim and after the statute of limitation for filing a claim had expired. The commissioner declined to reconsider his action rejecting the claim. A claim that has been rejected may not be amended after the statute of limitation has expired. Sugar Land Railway Co. v. United States, 48 F. (2d) 973, decided April 6, 1931, by this court. To hold that a claim for refund made-on a specific ground may, after it has been considered and rejected, be amended or enlarged so as to include an entirely different ground, and to claim a "much larger refund' than that asserted in the original claim, would be to permit an indefinite postponement of the limitation for bringing suit and would nullify the provisions of the statute-as to the time within which claims may be filed and the time within which suit may be-brought. Jonesboro Grocer Co. v. United States, 66 Ct. Cl. 320-327. The claim of August 2, 1927, did nof fulfill the requirements of the statute. The question here involved was not brought to the attention of' the commissioner by a timely claim, and he took no action upon it. “Even though formal, the condition upon which the consent to suit is given is defined by the words of the statute, and 'they mark the conditions of the claimant’s right.’ Rock Island R. R. Co. v. United States, 254 U. S. 141, 143, 41 S. Ct. 55, 56, 65 L. Ed. 188.” United States v. Felt & Tarrant Mfg. Co., supra.

The demurrer is sustained, and the petition is dismissed. It is so ordered.


author: GREEN, Judge.

text:
    WAUSAU SULPHATE FIBRE CO. v. UNITED STATES.
    No. J-618.
    Court of Claims.
    May 4, 1931.
    This ease having been heard by the Court of Claims, the court, pursuant to the stipulation of the parties, makes the following special findings of fact:
    The plaintiff is a corporation which overpaid its income and profits taxes for the year 1920 in the sum of $22,753.40 in the year 1921. On October 10, 1925, plaintiff filed with the Commissioner of Internal Revenue a waiver (effective until December 31, 1926) of its right to have the income and profits taxes for 1920 determined and assessed within the statutory period; and in July, 1926, an audit of plaintiff’s books and accounts was made by a revenue agent. Shortly after, and on July 20,1926, the plaintiff wrote a letter to the supervising internal-revenue agent in charge at Milwaukee, Wis., which letter stated that it had examined the said report, and further as follows:
    “We hereby agree to the amounts disclosed in such report as the net taxable income for these years.
    “Under separate cover we are requesting that the excess-profits taxes be computed under section 210 in 1917, and sections 327 and 328 in 1918 and subsequent years, due to the abnormal conditions existing in our business during such period.”
    On October 15, 1926, the commissioner answered this communication denying the application for the assessment of the plaintiff’s profits tax under the provisions of sections 210 and 328, and setting out the result of the audit, which showed an overassessment for 1920 in favor of plaintiff in the amount of $27,226.51. It was further stated in this letter that: “The overassessments shown above will be scheduled at the expiration of thirty days from the date of this letter in the form of certificates of overassessment, which will reach you in due course through the office of the collector of internal revenue for your district who thus will be officially notified of the rejection.”
    On October 25, 1927, the plaintiff filed a claim for refund in -the sum of $27,226.51, setting out the grounds of the claim in full, and stating, “This formal claim for refund is amendatory of an informal claim for refund filed by claimant on July 20, 1926, as will now be shown,” and also stating that the informal claim for refund was the letter of July 20, 1926, hereinabove referred to. There was no reference in the formal claim for refund to the request made in the letter that the excess-profits taxes be computed under certain provisions of the statute on account of abnormal conditions in its business.
    This claim for refund was denied by the commissioner on the ground that the letter of July 20, 1926, did not constitute an informal claim for refund, and that the application for refund was filed too late.

      W. W. Spalding, of Washington, D. C. (Mason, Spalding & MeAlee1, of Washington, D. C., on the brief), for plaintiff.
    George H. Foster, of Washington, D. C., and Charles B. Rugg, Asst. Atty. Gen., for the United States.
    Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
   GREEN, Judge.

The plaintiff overpaid its income and profits taxes for the year 1920 in the sum of $22,753.40, and now brings this suit to recover that amount. The defense is that the claim for refund was not filed until after the period of limitations had expired.

It appears that plaintiff had filed a waiver on October 10, 1925, effective until December 31, 1926, which, under section 284 (g) of the Revenue Act of 1926 (26 USCA § 1065 (g), served to extend the time for the filing of a claim for refund to April 1, 1927. But this was the latest date at which it could be filed, and there is no question but that what the plaintiff calls its “formal claim for refund” was not filed within the period of limitations. This so-called “formal claim” stated that it was “amendatory of an informal claim for refund filed by claimant on July 20, 1926,” and also stated that the “informal claim for refund” was contained in a letter written to the supervising internal revenue agent at Milwaukee, Wis., on July 20, 1926, the material parts of which are set out in the findings. This letter not only made no mention of a claim for refund, but contained nothing that could even be said to refer to a claim for refund, directly or indirectly.

It appears from the evidence that this letter was written after plaintiff had received the report of an audit of its taxes for the year in question, and showed that this report had been examined. Beyond this, it merely requested that its excess-profits taxes be computed under certain sections of the statute (Revenue Act Oct. 3, 1917, § 210-, Revenue Act 1918, §§ 327, 328 [40 Stat. 307, 1093]) which refer to what are commonly called “special assessments.” On October 15, 1926, the commissioner answered this communication denying the application for the assessment of plaintiff's profits tax in the, manner requested in the letter, and set out in detail the audit with the result thereof, which showed an overassessment for 1920 in the sum of $27,226.51. We do not think the letter upon which plaintiff relies could in any event be considered as a claim for refund. As above stated, it made no mention of a-claim for refund, and contained nothing that could even he said to refer to a claim for refund directly or indirectly. It did not state that if a special assessment was granted it would show an overasseSsment of plaintiff's taxes, or other facts entitling it to a refund. The letter appears to have been written merely in the hope or expectation that if a special assessment was granted it might show that plaintiff was entitled to a refund, in which event a claim for refund would thereafter be filed. But the letter, even when considered in connection with all of the circumstances of the case, completely fails to satisfy the requirements of a claim for refund. See Stauffer, Eshleman & Co. v. United States, 66 Ct. Cl. 277.

There are other reasons why plaintiff's claim cannot be held to be sufficient. In United States v. Felt & Tarrant Mfg. Co., 283 U. S. 269, 51 S. Ct. 376, 75 L. Ed. —, decided by the Supreme Court, April 13, 1931, the taxpayer filed what was designated as a claim “for refund of taxes illegally collected.” The sole ground stated for the reduction of tax demanded therein was that petitioner had filed with the commissioner an application for special relief from the amount of its excess-profits tax similar to the request made in the letter above referred to, but the suit was brought to recover what was alleged to be an overpayment of income and excess-profits taxes by reason of failure to allow the taxpayer a deduction on account of exhaustion or obsolescence of patents. The Supreme Court held that this claim was not a compliance with the statute, in that it did not set out the grounds on which suit was brought. Conceding arguendo that the letter might constitute an informal claim for refund, the grounds upon which suit is brought are altogether different from those stated in the letter, and the letter by itself and alone must be held insufficient upon the authority of United States v. Felt & Tarrant Mfg. Co., supra. Counsel for plaintiff eontend that this defect is remedied by the claim for refund filed on October 25, 1927, which was sufficient in form, and that thereby plaintiffs claim was saved from the bar of the statute of limitations which expired on April 1st of that year. We are unable to agree with this contention. The opinion of the Supreme Court in the ease above eited shows that the essence of a claim for refund is the statement of the grounds upon which it is based, and a mere general statement that the taxpayer claims a refund of a certain amount is not sufficient, although it is more than the plaintiff set out or claimed in the instant case. In one sense the second claim (if it may be called such) may be considered as amending any claim which was contained in the letter because the second claim so states, but in determining whether it operates to prevent the application of the statute of limitations we think a rule of pleading should be followed, especially as this rule is based on logic and reason. It is well settled that where a cause of action is defectively pleaded, an amendment not changing the cause of action hut curing these defects does not make the cause of action subject to the statute of limitations, even though the amendment be filed after the expiration of the period thereof. • On the other hand, if an amendment is filed after the expiration of the period of limitations setting up an entirely new cause of action it is barred by the statute, notwithstanding the original plea was filed in time. So in the instant case, even if we consider the letter as an informal claim for re■fund, the grounds constituted an altogether different cause of action from the one set out in the claim filed on October 25,1927. As the filing of the later claim was after the period of limitations had expired and set up a totally different claim from that expressed in the letter, it does not help plaintiff’s ease.

The fact that a second claim was filed after the expiration of the period of limitations makes the bar of the statute of limitations apply for another reason. The commissioner had considered and rejected the so-called informal claim which made an application for special assessment, and it was no longer susceptible of amendment after the statute of limitations had expired, so as to give plaintiff the right to bring suit on another and different ground. Sugar Land Ry. Co. v. United States, 48 F.(2d) 973, decided by this court April 6,1931; Mutual Life Ins. Co. of N. Y. v. United States (Ct. Cl.) 49 F. (2d) 662, decided this date.

It should be observed that the instant ease differs from that of Bonwit Teller & Co. v. United States, 283 U. S. 258, 51 St. Ct. 395, 397, 75 L. Ed.-, decided by the Supreme Court April 13, 1931. In that case the claim first presented was allowed as an informal - elaim for refund; in the instant case the claim first filed was rejected and never treated by the commissioner as a claim for a refund, either formal or informal. With reference to this point the Supreme Court said in the Bonwit Teller & Co. Case, supra: “The question here is to be distinguished from that which would have arisen if, contrary to the taxpayer’s insistence, the Commissioner had held that what was done did not constitute a filing of a claim.”

It follows that plaintiff’s petition must be dismissed, and it is so ordered.


text:
    McKENNEY v. UNITED STATES.
    No. J-667.
    Court of Claims.
    May 4, 1931.
    This suit is for the recovery of interest under section 1324 (a) of the Revenue Act of 1921 (42 Stat. 316), on an overpayment of $161,031.27 allowed and refunded by the Commissioner of Internal Revenue for 1917.
    The tax refunded constituted an overpayment resulting from special assessment of the profits under the provisions of section 210 of the Revenue Act of 1917 (40 Stat. 307). It was not paid under protest, but $5,530.94 of the refund was paid as the result of an additional assessment. The question is whether the plaintiffs filed a claim for refund.
    Special Findings of Fact
    1. Plaintiffs are and were throughout the taxable year 1917 members composing the partnership of H. P. MeKenney & Company engaged in the business of woolen commission -merchants in New York City. March 30, 1918, the partnership filed income and excess profits tax returns for the calendar year 1917 showing the excess profits tax due thereon to be $140,539.12 which was paid June 6, 1918. After an examination and audit of the returns, based upon a revenue agent’s report, the Commissioner of Internal Revenue on July 29, 1920, notified the partnership that he had determined a deficiency of $5,530.94. An additional assessment of this amount was made October 11, 1920, and was paid by the partnership November 19, 1920.
    2. November 24, 1920, the partnership filed a revised income tax return for 1917, together with a claim for the refund of $4,-879.44 of the additional assessment of excess profits tax for 1917, together with a protest thereon dated November 23,1920. The basis of this claim for refund was that the commissioner had erroneously reduced the salaries of the four partners in the total amount of $6,000.
    3. May 2,1922, the partnership filed with the commissioner an application for the determination and assessment of its excess profits tax for 1917 in accordance with the provisions of section 210 of the Revenue Act of October 3, 1917, and articles 18, 24, and 52 of Regulations 41.
    After setting forth in detail and at length the reasons and grounds in support of the application for special assessment, and the names of six concerns engaged in a like or similar business to that of the partnership which it believed should be used as comparatives in the determination of its profits tax, plaintiff stated:
    “It is claimed that the foregoing facts as set forth, constitute an abnormal condition, that warrants assessment under section 210 of the Revenue Act of 1917.
    “Therefore it becomes, not a question of how much the tax should be reduced, but of determining, , in the only statutory manner possible, what the taxpayer’s tax should be, and that can only be found by a reference to the representative concerns, engaged in the same business or a similar business.
    “An adjustment oh the basis as above indicated would appear as follows:
    Tax assessed................ $146,070.06
    Tax as corrected............. 45,354.15
    Indicating an overassessment of.............. $100,715.91”
    The entire application for special assessment is attached to the stipulation as Exhibit 4 and is made a part of this finding by reference.
    4. The Commissioner of Internal Revenue on October 5, 1922, allowed the application for special assessment and, upon the basis of the statements therein set forth, determined that there had been an overpayment for 1917 of $101,031.27, and notified the partnership by letter, as follows:
    “Reference is made to your income and excess-profits tax .returns, Forms 10.65 and 1102, for the year ended December 31, 1917, and your application for assessment under the provisions of section 210 of the Revenue Act of 1917.
    “You are advised that after careful consideration of all the facts, as set forth in statements filed with your'returns, and with other data submitted, your case has been given consideration under the provisions of section 210. * * * Tim audit of your returns * * * indicates an overassessment for the year, summarized and explained, as follows:
    Total excess prof-
    its-tax assessment.......... $45,038.29
    Tax previously asssessed, original.. $140,539.12
    Additional assessment .......... 5,530.44
    - 146,069.56
    Indicating an overassessment of............... $101,031.27
    “The overassessment shown herein will be made the subject of certificates of overassessment, which will reach you in due course through the office of the collector for your district, and will be applied by that official in accordance with section 252 of the Revenue Act of 1921.”
    5. On November 1, 1922, the commissioner approved the schedule of reductions in tax liability embracing the overassessment above stated, which was transmitted to the collector at New York for his action in accordance with the directions appearing thereon. The collector complied and, on February 21,1923, signed and returned the schedule* together with a schedule of refunds and credits showing the overassessment of $101,031.27 to be refundable. March 18, 1923, the commissioner signed the schedule of refunds and credits authorizing the disbursing clerk of the Treasury Department to jssue cheek for the amount shown to be refundable.
    • 6. March 26, 1923, a certificate' of over-assessment for $101,031.27 stating “An audit of your income tax return for 1917, Forms ^1065 and 1102, and examination of related claim (if any), indicates that the amount of tax assessed to you for this year was in excess of the amount due,” together with treasury cheek for $101,031.27, was mailed to the partnership. This certificate of overassessment is attached to the stipulation as Exhibit 5 and is made a part of this finding by reference. The commissioner did not allow, compute, or pay the partnership any interest upon this overpayment.
    May 7, 1928, the partnership made request in writing upon the commissioner to compute and allow interest on the overpayment in accordance with existing law, and on July 10, 1928, the commissioner declined to do so, stating that: “The records of this office indicate that the application for special assessment, upon which the allowance was based, was not sworn to nor afterward perfected by a claim for refund on the same basis. Interest, therefore, is not payable on the amount refunded under the provisions of section 1324 (a) of the Revenue Act of 1921 in effect at the time the allowance was made.” The partnership further protested this action of the commissioner and demanded payment of interest on the ground that it made a claim for refund in its application for special assessment, in that it set forth with definiteness the tax paid, the correct tax liability, and the amount of overpayment claimed, and the facts in support thereof. On August 30, 1928, the commissioner again refused to allow and pay any interest, advising the plaintiffs in a letter of that date that: “This application did not meet the requirements of Art. 1036 of Regulations 62 with respect to the filing of claims for refund, in that the-statements therein contained were not made under oath. * * * It is your contention that this allowance was made upon the basis of an informal claim for special assessment filed May 2, 1922, and that, therefore, interest is payable on the refund in accordance with the provisions of section 1324 (a) of the Revenue Act of 1921. This view of the matter is, however, contrary to that taken in Law Opinion 1116 (C. B. HI — 1, pg. 350). Accordingly, it must be held that the refund in this case was made by the commissioner within the five-year period of limitation provided in section 252 of the Revenue Act of 1921, and not as the result of the filing of any allowable claim for refund. No interest is, therefore, payable under section 1324 (a).”
    Harry S. Hall, of New York City, for plaintiff.
    Lisle A. Smith, of Washington, D. C., and Charles B. Rugg, Asst. Atty. Gen., for the United States.
    Before BOOTH, Chief Justice, and GREEN, LITTLETON, WILLIAMS, and WHALEY, Judges.
   LITTLETON, Judge.

This suit is for the recovery of interest under section 1324 (a) of the Revenue Act of 1921 upon an overpayment for 1917 of $101,031.27 allowed by the Commissioner of Internal Revenue on March 18, 1923, and refunded by treasury cheek of March 26,1923. The question whether plaintiffs are entitled to recover interest upon the refund depends upon whether the statements set forth by the partnership, of which plaintiffs were members, in an application filed with the commissioner May 2, 1922, for determination of the excess profits tax for 1917 in accordance with the provisions of section 210 of the Revenue Act of 1917, which was allowed by the commissioner, were sufficient to constitute a claim for refund within the meaning of section 1324 (a) of the Revenue Act of 1921 entitling plaintiffs to interest on the refund from six months after May 2, 1922, to the date of allowance on March 18, 1923.

The partnership insisted before the Commissioner of Internal Revenue, and insists here, that the document of May 2, 1922, was sufficient to constitute a claim for refund authorizing the payment of interest of the amount of the refund, and that since the commissioner allowed the claim he was required by law to compute and allow interest. The commissioner refused to pay interest on the ground that no formal claim for refund had been filed and that the document of May 2, 1922, did not meet the requirements of article 1036 of Regulations 62 with respect to the filing of claims for refund in that it was not sworn to by the taxpayer. The commissioner gave as a further reason for refusing to pay interest that he allowed and paid the refund within the five-year period of limitation provided in section 252 of the Revenue Act of 1921 and not as the result of the filing of a claim for refund.

We are of opinion from the facts in this ease that the plaintiffs are entitled to judgment for interest under section 1324 (a) of the Revenue Act of 1921 upon the refund in question. The document was sufficiently certain to advise the commissioner and to put him upon notice of the grounds of the claim, the facts relied upon in support thereof, and the amount by which the taxpayer claimed that its tax had been overpaid. The taxpayer, with remarkable certainty for a ease of this kind, set forth the amount of the correct tax liability and the amount of the overpayment made. The amount by which the taxpayer in this document claimed that the tax had been overpaid differed from the overpayment finally determined by the commissioner by only $315.36. It is clear from the statements made by the commissioner to the partnership in his letter of October 5, 1922, and the certificate of overassessment of March 26, 1923, that he had allowed.the claim made and had determined and allowed the overpayment upon the basis of the statements therein set forth. The reason given by the commissioner for his refusal to pay interest, that he had allowed and paid the refund within the period of limitation within which he was authorized to make such allowance and payment, and not as the result of the claim, was contrary to fact because the five-year period within which the commissioner was authorized to allow and pay the refund in this case expired on March 1, 1923, which date was the expiration of the five-year period after the return for 1917 was due. Plaintiffs’ income and profits tax returns for the calendar year 1917 were due on March 1, 1918. Section 13 (b) of the Revenue Act of 1916 (39 Stat. 770); section 205 of the excess profits tax act of March 3, 1917 (39 Stat. 1001); and section 211 of the Revenue . Act of 1917, approved October 3, 1917 (40 Stat. 307). The refund in this ease was allowed by the commissioner March 18, 1923, and was paid March 26, 1923. His only authority for allowing and paying the refund was the claim filed by the partnership. After the commissioner had received, considered, and allowed the claim and paid the refund, it was too late for him to say that because of its informality it was not sufficient to permit the allowance of interest. His allowance and payment of the refund upon the basis of the claim made was within the scope of his authority. There is no suggestion that the'allowance and payment of the refund was induced or resulted from fraud or mistake. As was stated by the Supreme Court in Bonwit Teller & Co. v. United States, 51 S. Ct. 395, 397, 75 L. Ed.-, decided April 13, 1931: “The facts found disclose that there was a reasonable or substantial compliance with the amendment. [The statute.] The Commissioner within the .time allowed was advised of the grounds on which plaintiff’s right to refund rested, and was not misled or deceived by plaintiff’s failure to file formal claim and was fully warranted in holding that the waiver and earlier documents wer^ sufficient. Tucker v. Alexander, 275 U. S. 228, 231, 48 S. Ct. 45, 72 L. Ed. 253.” The document in this ease claimed a refund with as great if not greater certainty than the documents in the Bonwit Teller & Co. Case and, as pointed out in that ease by the court: “No statute provides for review of the Commissioner’s determinations in favor of taxpayers when made within the scope of his authority. Such rulings are entitled to much weight.”

The fact that the question here is a suit for interest, rather than for a portion of the overpayment allowed but not paid, does not change the situation. A claim that is sufficient for one purpose is sufficient for another. Having allowed and paid the refund upon the basis of the statements and claims set forth in the application, which he could not have done without treating the document as a claim for refund, it was thereafter too late for him to change his opinion about it and refuse to pay the plaintiffs the interest which the statute makes mandatory as the result of his allowance of the claim. See Lasher v. United States, 65 Ct. Cl. 295. The facts in this ease distinguish it from Stauffer, Eshleman & Co., Ltd., v. United States, 66 Ct. Cl. 277, and Maas & Waldstein Co. v. United States, 37 F.(2d) 196, 68 Ct. Cl. 613.

The last-mentioned ease turned upon the question whether a request for special assessment without any claim or showing that there had been an overpayment constituted such a protest as would entitle the plaintiffs to interest under the 1921 act. The opinion indicates that this court would be without jurisdiction of a suit for interest upon a refund allowed by the commissioner as a result of special assessment as to do so would be to change the amount found by the commissioner, and, further, that section 1324 (a) does not apply to a request for special assessment, but only to claims where the action of the commissioner is subject to review by the courts. These statements went beyond the necessities of that ease, since the court had already decided that the request for special assessment did not constitute a protest. The interest provisions of the statute are general and apply to all refunds falling within their terms. They are mandatory and repose no discretion in the commissioner beyond the determination of the fact whether the tax was paid under protest, or pursuant to an additional assessment, or whether a claim for refund or credit was filed; a fact which does not require the exercise of any discretion or knowledge of accountancy but only the deterjnination of an ordinary fact concerning which the courts constantly review the decisions of administrative officers. The matter of interest in no way enters into the amount of profits tax that the commissioner may determine under the special assessment provisions. Once he has made a computation of the tax under the special assessment provisions, the discretionary authority vested in him, which the courts can not review, is at an end. The question whether the taxpayer is entitled to interest on an overpayment resulting from the computation of tax under the special assessment provisions is as much within the jurisdiction of the courts as is the question whether a taxpayer is entitled to interest on an overpayment resulting from any other cause.

Plaintiffs are entitled to judgment for $2,942.57, representing interest at 6 per cent, on $5,530.94 from November 19, 1920, to March 18, 1923, and on $95,500.33 from November 2, 1922, to March 18, 1923. Judgment in favor of plaintiffs for $2,942.57 will be entered. It is so ordered.