#### Sophia Friend, Appellant, *v.*Sigmund Rosenwald, as Surviving Member of the Firm of E. Rosenwald and Brother, Respondent.

First Department,

February 7, 1908.

Money had and received — sale ^- contract requiring buyer to pay duties — action to recover duties.refunded by government.

When goods in bond are sold under a contract requiring- the buyer to pay to the ■ seller the amount of the import-duty in cash, and the latter, after turning over the sum to the collector, of customs, has received back from the government a portion thereof as an overpayment, the buyer may maintain an action at law tó recover money had and received to her use. -

Evidence examined and *held',*that".the plaintiff made *prima facie,*proof that the goods wer.e bought and the duties paid by her under .such contract, and that ■ ■ a dismissal of the complaint upon the merits was error.

Appeal by the plaintiff, Sophia Friend, from a judgment of ■ the . Supreme Court in favor of the defendant, entered in the office of *227the clerk of the county of New York on the 15th day of June, 1907, upon the dismissal of the complaint upon the merits by direction of the court at the close of the plaintiff’s case on a trial at the.New York Trial Term. -

*William D. /Sporborg,*for the appellant.

*JB. F. Einstein*of counsel *\_Einstein, Townsend da Guiterman,*attorneys], for the respondent.

■ Clarke, J.:

This is ah action for money had and received to the plaintiff’s use. The defendant is the surviving partner of the firm of E. Bosenwald & Bro., who, at the time of the transactions in question, were importers of Sumatra tobacco. The plaintiff holds an assigned claim of E." & Gr. Friend & Co., who, in 1889 and 1890, were purchasers of imported tobacco from the defendant’s firm. Bosenwald *&*Bro. had in bond,, subject to the payment of the duties, a quantity of Sumatra tobacco, of which twenty-seven bales were sold to plaintiff’s assignors on -Hovember 29, 1899, and fifty-three bales thereof on May 28, 1890. It was in evidence that tobacco in bond is sold in two ways: at the “ long price,” which denotes that the duty does not come in question at all, that the goods are sold at a flat price without reference to the duty; and at the “ short price,” that is, that the merchandise and the duties are separated. The claim, is here that the tobacco in question was sold by defendant’s firm to plaintiff’s assignors at the short price ; that the purchaser was to pay the amount of the duties, whatever they were, in cash and give four or five months’ notes for the merchandise; that in anticipation of the taking effect of the McKinley tariff in October, 1890, the duties on all the tobacco purchased as then liquidated were paid in cash before September twenty-second, because if paid thereafter the tobaccowould have been subject to the new rates; that the plaintiff’s assignors paid the estimated amount of the duties on these purchases to the_ defendant in cash, who, as the importer, paid the same to the collector ; that subsequently the duties were reliquidated upon these goods and that the'defendant received back from the government $2,484.58 as an overpayment, and as said sum had in the first place been paid by plaintiff’s assignors to defendant’s firm *228they received this refund to the plaintiff’s use and *ex aequo et bono*should pay it over to the plaintiff. Tlie. payment of the duties in cash by plaintiff’s assignors to the defendant’s firm and' the receipt of the refund by the defendant’s firm from the government were sufficiently established by the evidence. If. the transaction was as claimed by the plaintiff, then a cause of action was made out.

“ Assuming that the plaintiff is -right in his construction of the facts, the .case falls within the familiar doctrine that money in the hands of one person, .to which another is equitably entitled, may be recovered in a. common-law action by the equitable-owner upon an implied promise arising from the duty of the person in possession to account for and pay o.v-er the .same ,to the person beneficially entitled. The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. * ,* * Ro privity of contract between the parties is required, except that, which results from the circumstances. *(Mason*v. Waite, 17 Mass. 560.) The right on the one side and the correlative duty on the other create the necessary privity and justify the implication of a promise by the defendant to do that which justice and equity require. It is immaterial also whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on- liis part created by the circumstances to account for and pay it over to the plaintiff.” *(Roberts*v. Ely, 113 N. Y. 128.)

*“*It would naturally be expected that the plaintiff who furnished the money to pay the duty would be entitled to any overpayment ■ exacted by the agents of the government rather than the defendants, who, although making the payment, in fact did not use their own money for the purpose. Ro one was really interested in the amount paid except the plaintiff, upon whom the burden of the duty fell, although the defendants formally handed the money over, because the government would accept it only from the importer. * * *, The plaintiff provided the money and ran the only risk, and it was within the reasonable, contemplation of the parties that it should receive the amount refunded by the government after payment of expenses. *Ex aequo et bono*the defendants had no right to it, but simply received it to the use of the plaintiff.” *(Solomon Tobacco Co.*v. Cohen, 184 N. Y. 308.)

*229The question in the case at bar is whether there were sufficient facts from which the jury might infer that in this transaction the plaintiffs assignors were to and did pay the duties as such. The complaint having been dismissed upon the merits at the close of the plaintiffs case, every reasonable intendment must be indulged in favor of the plaintiff.

As to the first purchase of twenty-seven bales, the invoice reads: “ Novbr. 29, 1889. Messrs. E. *&*G. Friend *&*Co., City. Bought of E. Bosenwald & Bro., terms 5 months, duty cash, 27 bales tobacco as per weigher’s return, 4765—216=4549 lbs. at $1.65, $7,505.85.” One of the members of the firm of E.'& Gr. Friend & Co. testified that they purchased those twenty-seven .bales of tobacco from the defendant’s firm and had a talk with a member thereof, who said that the price of this tobacco was so much, naming the amount, “this is what we bought it at, $1.65 a pound for the tobacco and the duty. Mr. Bosenwald said that we could have this tobacco on five months’ time, and the duty was to be cash, which we accepted. * -x- -x- "We were to pay the duty when we withdrew the tobacco.” “ The price was $1.65 a pound with the duty.”

In regard to the second transaction, the fifty-three bales, the •invoice is as follows: “ Mew York, May 28,1890. Messrs. E. & Gf. Friend *&*Co., City. Bought of E. Bosenwald *&*Bro., terms 4 & 5 months, duty $5,349.31 cash, 53 bales tobacco as per weigher’s return, 9460—424=9036 lbs. at $2.0920, $18,903.31.” In regard to this the witness testified to a conversation with the same member of the defendant’s firm. “The conversation was that we were to buy this tobacco on four and five months. We were to buy fifty-three bales. The terms'were made four and five months’ note, and the duty was to be cash as we withdrew it; that we were to pay to them. * "x" * We were to pay the duty. We were to give four and five months’ notes for the tobacco, and the note which we gave did not include the duty. * * * The price was two dollars and nine cents and one-twentieth of a cent. The duty was included in that. All those goods which we bought at that time were taken out of bond and the duty paid on them.” Being shown the invoice, he was a deed : Q. “ It says on there, duty $5,349.31 cash; what does that mean, "x" "x" "- as far as your agreement'with him was concerned ? A. That meant that we were to pay $5,349,31 for duty, * * * *230and we were to give a four or five months’ note for the Balance, the merchandise portion. Q. And the same way in this other invoice, you were to pay the duty under the same agreement? ■ A. That is the same. That tobacco .was bought at the short price.”

From the conversations testified to and the invoices or memoranda of the sales, and the testimony as to the custom of the trade, I think the plaintiff fairly made out a *prima facie'*case that these transactions were at the short price, and that the purchaser paid the duties as duties in cash, and so was entitled to any refund that might be. allowed thereon. Having so made out a case, he \yas entitled to go to the jury, ,ánd the dismissal of the complaint, upon the merits at the close of the plaintiff’s case was error.

The judgment should,, therefore, he reversed and a new trial granted, with costs to the appellant to abide the event.

Pattbbson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.