Lake v. Devoe Manufacturing Co. , 7 Daly 161 ( 1877 )

Joseph F. Daly, J.

The plaintiff was exporter of the cans and oil, the defendants, from whom he purchased it, acting as his agents in shipping it, although they did so in their own name and entered the goods for drawback in their own name. Under the Statutes of the United States, the drawback debentures are to be. issued at the request of the exporter. (U. S. Rev. Stat. § 3038), and by the Treasury Regulations the exporter alone is recognized as the party to apply for and receive the debentures. Plaintiff, the exporter of these oil cans, may treat the defendants as his agents, and to That extent ratify their act in entering the goods for drawback and receiving the debentures, and may maintain his ■action for the money so received by them, because:—1st. Defendants in shipping the goods acted as plaintiff’s agents, pursuant to his directions, and were thus, and not otherwise, ■enabled to make the export entry for drawback in the course of his employment and not independently of him. 2d. Defendants canceled their bond given on such entry by the certificate given them by plaintiff, who, at the time he gave it, demanded the drawback. Upon the conflicting testimony on this point we must assume from the decision the justice found in plaintiff*s favor. 3d. By this action and the delivery of such certificate, plaintiff ratifies all the acts of defendant in entering the goods, and cannot claim against the government. The authorities cited by defendant (Butterworth v. Gould, 41 N. Y. 450; Patrick v. Metcalf, 37 N. Y. 332), therefore, do not apply to the state of facts here disclosed.

But defendants claim that by the custom of the trade, they, as sellers of the oil in cans to plaintiff for exportation, were entitled to the drawback, having made the customary deduction from the price for the oil they sold plaintiff in consideration ■of such drawback to be received. But the plaintiff, admitted .as a witness as to the custom, testified that where the seller is to retain the drawback a special contract is always made.

The evidence is conflicting, but the justice has found against defendants on the questions of fact in the case, and I am not .in favor of disturbing his decision.

The judgment should be affirmed.

Charles P. Daly, Ch. J., concurred.