#### SWIFT & COURTNEY *&*BEECHER COMPANY v. THE UNITED STATES.

No. 11981

January 22, 1883.

The claimants, from 1870 to 1878, were manufacturers of matches, furnished their own dies, and gave bonds for the payment of stamps furnished within sixty days after delivery, under the *Act of July,*1862 (12 Stat. L., 477, § 102, ch. 119), as amended by *Aot of March*3, 1863 (12 Stat. L., 718, ch. 74). Each order was for stamps of a stated value, *e. i.,*for $3,000 worth. The Commissioner returned stamps, allowing a commission of ten per cent, on the *amount of money, e. L,*stamps of the face value of $3,300. The stamps were aclrnowiedged in each case as *in full satisfaction of the order.*During the time of these purchases sixteen hundred such orders were given, fulfilled, and thus receipted for, without protest or objection, and were paid for within sixty days of delivery. Accounts current were made by the Commissioner monthly, and forwarded to the accounting officers, in which the commissions were computed *on the amount of money involved in the transaction,*and frequent settlements were stated by the accounting officers. Soon after the law was passed some parties objected to that method of computation, but no objections were made by the claimant corporation until near the time of bringing this action, during a period of nine years of purchases. The claimants brought this action to recover the difference between allowances made to them computed as ten per cent, commission on the money involved in the transaction, and ten per cent, on the face value of the stamps, during the whole period of their dealings. The case had been decided, upon demurrer, for the claimants on appeal to the Supreme Court (105 U. S. R., 691) upon a different state of facts from those now proved. The original act allowed “discount,” but the amendatory act substituted “commission” for “discount.”

*43Held:

I.“Commission” and “discount” are similar but not identical. Commission is a percentage *upon*the amount of money involved in the transaction. Discount is a percentage *taitón from*the face value of the security or property negotiated.

II.Where a revenue act provides that purchasers of proprietary stamps shall he allowed a “discount” according to the amount purchased, and that purchasers of other stamps shall he allowed a “commission,” and an amendatory act changes the word “ discount” to “commission,” it would seem that Congress intended to make a change in the law as to allowances for proprietary stamps.

III. Where each purchase is hy written order, separate and distinct from other purchases, and each parcel is forwarded hy the Commissioner with a letter stating that it is *“in*satisfaction” of the order, and the purchaser also acknowledges the stamps received as “in satisfaction”' of the order, and subsequently pays for them without objection, the facts constitute a contract of sale and delivery in each case at a price fixed hy the parties.

IV. Where stamps were from time to time ordered upon sixty days’ credit and were paid for within that period of time, there was no running or open account, such as would authorize the purchaser to treat the transaction as open and unsettled.

V.Accounts of the claimants having been adjusted hy the Commissioner once each month, and notice given to them through a period of nine years, it nrast he held that the accounts were not open and running accounts beyond one month each.

VI.A purchaser of stamps who through a series of years accepts and pays for those sent to him at the rate of commission allowed hy the Commissioner without objection, is con chided from afterwards claiming that the statute authorizing such transaction gave him a right to a discount beyond the amount allowed hy the Commissioner of Internal Eevenue. *(Act of July*1, 1862, ch. 119, § 102, 12 Stat. L., 477, and *Act of March*3, 1863, ch. 74, 12 Stat. L., 718.)

This case was heard at a former term of this court, upon a general demurrer filed by the defendants, and then sustained on the ground that the long practice of the executive officers-whose duty it was to administer the law, unobjected to, had given a construction to doubtful and ambiguous language of the statutes, which the court did not feel authorized at that late day to change. (14 C. Cls. lb, 481.)

Upon appeal, the Supreme Court overruled the demurrer, considering that *it was virtually admitted*that the construction adopted by the Commissioner was clearly wrong and that of the claimants was correct, and that contemporaneous construe*44tion by executive officers could only control tbe meaning of a statute in case of doubt and ambiguity.

The case is now tried upon the facts, and the defendants set up, among other defenses, the statute of limitations.

The following, are the facts found by the court:

I. The claimant is a corporation organized under the laws of the State of Connecticut April 20,1870, and from May 0,1870, to December 20, 1878, and subsequently was a manufacturer of friction matches, furnishing, without expense to the United States, in suitable form, approved by the Commissioner of Internal Eevenue, its own dies and designs for stamps to be used thereon.

II. On the 17th of May, 1870, said company furnished to the Commissioner, as security for the paymentfor stamps to be delivered by him to said company on credit, its own bond, with sureties, in the penal sum of $30,000, payable to the United States upon the following conditions therein contained:

The condition of the foregoing obligation is such that, *whereas*the said Swift *&*Courtney & Beecher Company is a manufacturer of friction matches, cigar-lights, or wax tapers; *and whereas,*under the provisions of the 161 section of an act entitled “An act to provide internal revenue to the Government, to pay interest on the public debt, *&*for other purposes,” approved June 30, 1864, the Commissioner of Internal Revenue is authorized from time to time to furnish, supply, & deliver to any manufacturer of friction or other matches, cigar-lights, or wax tapers a suitable quantity of adhesive or other stamps such as may be prescribed for use in such cases without prepayment therefor, on a credit not exceeding sixty days, requiring in advance such security as he may judge necessary to secure payment therefor to the Treasury of the United States within the time prescribed for such payment ; *and whereas*adhesive stamps have been delivered or heréafter may be delivered to said Swift & Courtney & Beecher Company by virtue of said .authority:

Now, therefore, if the said Swift & Courtney & Beecher Company shall, on or before the tenth day of each &• every month, mate a statement of their account upon'Form 55£ of the Internal Revenue Bureau, & upon such other form or forms as may hereafter be added thereto or substituted therefor, showing the balance due at the commencement of the month, the amount of stamps received, & the amount of money remitted by them during the month, & the balance due from the Swift & Courtney *&*Beecher Company, at the close of the month next preceding * * * and shall do and perform all other acts of them required to be done in the premises, according to law & regulations; shall well & truly pay or cause to be paid to the Treasurer of the United States, for the use of the United States, all & every such sum *45or sums of money as the said Swift & Courtney & Beecher Company may owe to the United States, for adhesive stamps, which have been or shall he delivered to them, or which have been or shall be forwarded to them according to their request or order, within the time prescribed for payment for the same according to Jaw, & shall & will pay or cause to be paid to the said Treasurer, for the use aforesaid, each & every such sum of money as shall become due or payable to the United States, at the time and on the days each sum shall respectively become due & payable, then the above obligation to be void & of no effect.”

Similar bonds were furnished May 24,1870, for $30,000; February 29,1872, for $30,000; and December 14,1872, for $150,000.

III. The uniform course of business between the parties, in relation to ordering, forwarding, making returns, accounting, and paying for stamps, was as hereinafter set forth:

1. Whenever stamps were desired, the claimant sent an order-in the following form:

Office of the Swift & Courtney and Beechee Co.,

Match Manufacturers,

*[Date.*]

*Com. of Inter. Sev., Washington:*

Dear Sie: Please forward us by express $3,000 worth [or *whatever quantity was required]*of match stamps S. & C. lc., and oblige,

Yours, truly,

The Swift & Courtney & Beechee Co.,

L. S. Benton, *Att’y.*

2. The Commissioner in reply forwarded stamps of the face value of the amount of, and ten per cent, commission on, the money specified in the order, accompanied by a letter in the following form, except the words inclosed in brackets, which are inserted here as explanatory of the method of computing commissions; taking an order of $3,000 as a specimen.

(Office Poem 113 — Stamp Division.)

*Invoice of documentary and proprietary stamps,*

Treasury Department,

Office of Internal Bevenue,

*Washington, [date.']*

Swift & Courtney &. Beecher Co. :

Gentlemen : I have this day forwarded to you by express United States internal revenue private-die stamps of the face value of thirty-three hundred dollars *[or a sum equal to the amount of, and ten per cent, commission on, the amount of money specified in the order],*in satisfaction of Order No.-.

When the stamps come to hand they should be carefully counted in the presence of a disinterested witness, and if the invoice is found correct you *46will date, sign, and transmit to this office by first mail the inclosed receipt.

If the stamps fail to come to hand within a reasonable time please notify this office.

Very respectfully,

-, *Commissioner.*

-, *Chief of Stamp Division.*

3. The receipt referred to in such letter was prepared and filled up by the Commissioner except the date and signature, forwarded to the claimant corporation, and by it signed and returned to the office of the Internal Revenue Bureau, and was in the following form:

(Office Form No. 44 — Stamp Division.)

*Receipt for documentary and proprietary stamps.*

*\_Date.*]

Sir : Your letter of the-has been received. I am also in receipt of

the United States internal-revenue stamps therein referred to, amounting to thirty-three hundred dollars [or *a sum equal to the amount of, and ten per cent, commission on, the amount of money specified in the*order], in satisfaction of my order under date of-.

I am, very respectfully,

The Swift & Courtney & Beecher Co.,

L. S. Benton, *Att’y.*

To Commissioner of Internal Revenue,

*Washington, D. C.*

No. —. 3,000.

Note. — This receipt should be signed and forwarded to Washington by first mail. The signature should be legally and technically correct, so as to bind the person, firm, or corporation ordering and receiving the stamps.

4. The claimant throughout availed itself of the credit provided for by statute. No order for stamps was ever for a less quantity than $500 of face value. Remittances of money in payment were made in various sums from, time to time within the sixty days’ credit. Each remittance was for a sum not less than $500, did not specify and correspond to any one particular- and specified order for stamps, but did apply to orders the times for payment of which were near maturity.

The remittances were so made that all stamps received were thus paid for at or before the expiration of term of credit allowed.

The claimant was always indebted to the defendants for stamps received within the past sixty days, the time for payment for which had not matured, but was never indebted for any stamps received more than sixty days previously.

*475.Bemittances of money and acknowledgments of receipt thereof were made in the following forms:

The Swift & Courtney & Beecher Co.,

[Date.]

Hon. Green B. Baum,

*Com. Inter. Revenue, Washington, D. C. :*

Dear Sir: Enclosed please find Asst. Treas.-C. D. *leertifieate of*

deposit] No. 39 for two thousand five hundred ($2,500) dollars *lor other sum],*which pass to our credit.

The Swift & Courtney & Beecher Co.,

(Office Form 80.)

*Authority to take credit on Form*55^-.

Treasury Department,

Office of Internal Bevenue,

[Date.]

Swift & Courtney & Beecher Co.,

*Philad’a, Pa.:*

Sir : The following credit has this day heen given you on the hooks of this office on account of internal-revenue adhesive stamps, viz:

By duplicate certificate of deposit No. 39 of the Asst. Treas.-,

dated-, for. $2,500

Commission, @ 10 per cent. -$250

Total. $2,750

You are hereby authorized to take credit for the above amount on Form 55J for the current month.

Very respectfully,

*Commissioner.*

6. In compliance with directions thus given by the Commissioner and with Form 551, the complainant made its first return July 8,1870, and regularly thereafter each month during the whole period. These returns, with like statements in gross made by the Commissioner, were forwarded by the latter to the Auditor of the Treasury, and accounts thereon were from time to time stated by him aud transmitted to the First Comptroller, by whom the balances found due were certified in the manner that accounts are adjusted and settled in the Treasury Department.

7. From the commencement the Commissioner of Internal Bevenue held that the amount allowed by statute was to be computed as commissions upon the amount of money paid; and all business between the parties was transacted, and all accounts were stated and adjusted by the accounting officers, on that basis.

*488. The blank forms of 55| were furnished by the Commissioner to the claimants, who filled them up and returned them in accordance with the Commissioner’s directions and decision.

9. The first return thereon in which commissions were stated was as follows:

(55¿.)

*The United States in*% *current xoith the Sxoifi fy Courtney $ Beecher Coof Wilmington, Del., for the month ending July*31s¿, 1870, *under official "bond dated*-, *for*$60,000.

The above *%*is complete & true.

Bated August 9, 1870.

(Signed.) The Swift Courtney & Beecher Co.,

By "War. H. Swift, *Treasurer Match Manufacturers.*

10.The last return made before the commencement of this action was as follows:

(5540

*The United States in account-current xoith Swift Courtney Beecher Co., of Nexo ¿Caven, Conn., for the month ending Dec’r*31 *st,*1878, *under bond dated Dec’r \m,*1872, *for*$150,000.

Dk. Cb.

The above account is correct, complete, and true.

Swift & Courtney & Beecher Co., Match Manufacturer,

Wm. H. Swift, *Tr.*

Dated Jan’y 8,1879.

Hote. — The face value of stamps must always be inserted in the credit side of this account.

*49The monthly intervening returns were in like form as the above.

11. Such returns, with the Commissioner’s statement coinciding therewith, having been transmitted to the accounting ■officers, were settled and adjusted from time to time, as was the following account, which is inserted here as a specimen of all:

Treasury Department,

Fifth Auditor’s Office,

*tTuly 6th,*1872.

I hereby certify that I have examined and adjusted an account between the United States and The Swift & Courtney & Beecher Co., match manufacturers, internal-revenue stamp agents, at Wilmington, Del., for the quarter commencing Oct. 1st, 1871, and ending Dec. 31st, 1871, and find them chargeable therein, as follows:

Í $30, 000, dated May 17th, 1870.

•“““i 30,000 “ “ 24th, 1870.

To balance due from them per report No. 2939 (Eegis'ter’s

certificate). 39,050 00

To stamps, as per receipt dated in Oct., 1871. 24,200

“ “ Nov., 1871. 26,950

“ “ Dee., 1871. 24,200

“ “ Jan. 2, 1872 . 1,650

I also find them entitled to credit as follows :

68,200

Leaving balance due the United States, with which they

are tobe charged... 47,850

As appears from the account and vouchers herewith transmitted for the •decision of the Comptroller of the Treasury thereon.

J. H. Ela,

*Auditor,*

To the First Comptroller of the Treasury.

*50Teeasury Department, Comptroller’s Oeeice,

*July*16, 1872.

I admit *&,*certify a balance of forty-seven thousand eight hundred and fifty dollars as due the United States, as stated in the foregoing report.

Wm. Hemphill Jones.

*Acting Comptroller.*

To the Register oe the Treasury.

Notices of such settlements were forwarded to tbe claimants by mail.

IY. Prior to June 30, 1866, the leading manufacturers of' matches, among whom was William H. Swift, who, upon the organization of the claimant corporation in 1870, became one of its large stockholders and treasurer, made repeated protests-to the officers of the Internal Bevenue Bureau against the-method of computing commissions for proprietary stamps sold to those who furnished their own dies and designs.

But it does not appear that any one in behalf of the claimant corporation ever, after its organization, made any protest or objection against the method adopted by the Treasury Department for the computation of such commissions, or made claim to any allowance on account thereof beyond what had been accorded to them, until January 8,1879, when the following-correspondence took place:

Washington, D. C., *Jan’y*8ft, 1879.

Hon. Green B. Raum,

*Com’r of Int. Be».:*

Sir : I have the honor to state that The Swift & Courtney &■ Beecher Co. manufacture matches & use their own proprietary stamps. They claim that there is due to them from your office the sum of $35,822.50 as commissions upon stamps purchased as provided in section 3425 of the Revised Statutes. I have the honor to ash on behalf of said Co., *&*as their attorney,, for the payment of said sum due as aforesaid.

Very respectfully,

Geo. H. Williams.

Treasury Department,

Oeeice oe Internal Revenue,

*Washington, January*16ft, 1879.

Sir: Your letter of the 8th inst., stating that The Swift & Courtney & Beecher Company, manufacturers of matches, claim that there is due them the sum of $35,822.50 as commissions upon stanips purchased as provided in section 3423 of the Revised Statutes, and ashing on behalf of said corporation that payment of said sum be made, has been received.

In reply I have to say that the Swift & Courtney & Beecher Company *51las received all commissions «pon stamps to which they are entitled, provided tie mefclod of computing commissions which was inaugurated with the first issue of private-die proprietary stamps, and las been continued by each of my predecessors, is correct.

I have heretofore decided to adhere to the long established practice of the office in this regard until there shall be some legislation or a judicial decision to change it.

In the absence of such legislation or judicial decision the claim made by you in behalf of The Swift & Courtney & Beecher Company is hereby rejected.

Respectfully,

GREEN B. IÍAUM,

*Commissioner^*

Geo. H. Williams,

*Attorney, Washington, D.*C.

From May 6, 1870, to December 24,1878, tbe claimant corporation received from tbe Commissioner of Internal Bevenue proprietary stamps printed from its own private dies of tbe face value of $3,897,204. These were received in fulfillment of more tban sixteen hundred orders for different amounts, varying from $500 to $10,000, in form as set forth in paragraph 1 of finding III.

Fach remittance of said stamps exactly covered in face value the amount of, with ten per cent, commission added to, the money specified in an order, and the claimant was notified thereof by letter in the form set out in paragraph 2 of finding III.

Each receipt of said stamps in reply to said orders was acknowledged by the claimant by a letter, printed blank for which was furnished by the Commissioner, and was in form as set out in paragraph 3 of finding III.

All these stamps so received by the claimant were paid for at or before the expiration of sixty days after their receipt, in manner set forth in paragraphs 5, 6, and 7 of finding III.

FI. Stating accounts between the parties, for the purposes of this case, at such periods of time as either .party considered at the trial to be material, the following facts appear:

1. Whole face value of stamps delivered from May 6, 1870, to

November 21,1878 (sixty days before action brought). $3,836,544

Paid for within sixty days after purchase:

By cash. |3,487,767

By commissions on money paid. 348,777

3,836,544

*52Difference between amount of discount at ten per cent, on the face value and the amount actually

allowed as commissions on *the*money paid. $34,878

2. Whole face value of stamps delivered from November 21,

1872, for six years, up to November 21, 1878. $3,147,944

Fold for within sixty days after purchase:

By cash.-. $2,861,767

By commissions on money paid. 286,177

- 3,147,944

Difference between amount of discout of ten per cent, on face value and the amount actually allowed as commissions on the money paid. 28,616

*Mr. George L. Douglass*for the claimant :

1. The leading point in this case, involving the construction of the statute, upon which the claim primarily depends, has beenlfully settled in the claimant’s favor by the decision of the Supreme Court upon the demurrer. (105 U. S. R., 691.)

2. The defense now sets up an alleged *acquiescence*by the claimant, in the adverse ruling of the Department, as a bar to recovery, but that is clearly met by the decision of the court above:

The dealing is, undoubtedly, evidence that the appellant was willing to purchase stamps, to be paid for by a credit in account in lieu of cash for commissions; but it does not prove that he was willing to waive his right to a commission upon the stamps so purchased. And it would be incumbent on the Government, in order to deprive him of his statutory right, not only to show facts from which an agreement so to do might be inferred, but an actual settlement based upon such an understanding.

It is also well settled that—

A waiver of a legal right, to be available, must be clearly and explicitly shown.” *(Johnson*v. *Yale,*19 La. Ann., 212.)

3. The claimant, through its treasurer, was fully advised of theUnexorableness of the rule adopted by the Revenue Department, and the want of a formal protest and demand for payment of this commission signifies nothing, for under the circumstances such demand would have been an idle ceremony. The claimant was informed in advance that such a demand would be refused, and the law does not require a party to do a vain and useless thing. See the late case of *United States*v. *Lee*(106 U. S. R., 196).

4. In the present case the claimant was not at liberty to dis*53pute with the Commissioner, for it did not deal with Mm “ upon an equal footing.” To obtain credit as authorized by section 3425 Revised Statutes was of vital importance to it, and yet that credit could be suspended or arbitrarily refused by the Commissioner upon the slightest provocation. A refusal to sign the receipts which that officer demanded must, in all probability, have resulted in an immediate suspension of claimant’s credit under section 3425, and inevitable business disaster. There was no alternative, therefore, but to comply with the Commissioner’s requirements, and resort to the courts for a settlement of the controversy.

Under these circumstances to hold that the claimant is precluded by the character of the transactions from a determination of the claim upon its original merits would be a practical abrogation of the most important and useful functions of this court. (14 C. Cls. R., 332, 382; 101 U. S. R., 164, 170.)

5. In reference to the statute of limitations, the evidence now before the court shows that there was a “running account” between the claimant and defendants during the entire period covered by the petition. Hence, upon well settled legal principles, the statute of limitations runs from the last item only, and is not a bar to any portion of the debt. *(Sickles*v. Mather, 20 Wend., 72; Angelí on Limitations, §§ 143, 248; 1 Deacon (Eng. Bankruptcy), 551; *Boss*v. *Boss,*13 N. Y. Sup. Court Rep., 80 (1875); *Sanders*v. Sanders, 48 Ind., 84; *Sodge*v. *Manley,*25 Yt., 210.

*Mr. John S. Blair*(with whom was *Mr. Thomas Simons,*Assistant-Attorney-General) for the defendants:

1. We think the evidence introduced since the mandate came from the Supreme Court substantially makes this what the Supreme Court, in its opinion, said was not the case made out by the petition, to wit, “ that of successive and independent purchases settled for at the time when the commissions given by the law were paid by the Commissioner, the purchaser voluntarily accepting payment not in money, but in other stamps; and new dealings of the same character, but separate as to each instance, had afterwards, upon the same footing and by mutual understanding.” And we think that we have shown an actual settlement not only at the time of each purchase, but also at *54the end of every month, wherein claimant successively waived his statutory right.

For eight years and a half claimant, in ordering, requested a shipment of so many stamps as an amount of money named was worth, and the shipment would be made expressly to fill said order, and claimant would acknowledge receipt of the shipment in satisfaction of said order.

It is true that it had sixty days in which to pay the successive debts thus incurred and liquidated, but for almost eight years and a half it accepted, without complaint, an acknowledgment of each remittance of money, which stated precisely what credit it would be allowed therefor; and at the end of every month it sent to the Commissioner a statement showing the balance due. In a good many instances payments corresponded with invoices of stamps received sixty days before, and in a good many they did not, and it is true that, in making the remittance, neither claimant nor the United States applied the money specifically to any item, but it must be assumed that claimant complied with the statute and his bond, and that by the 8th of January, 1879, the day he made his demand on the Commissioner, he had paid in cash for every stamp received by him up to the 9th of November, 1878. Having regularly agreed upon the price of the stamps at the time of each independent transaction, and having by the 8th January, 1879, liquidated without complaint the whole amount due on the 9th November, 1878, claimant is in no better position than if the payments had been contemporaneous with the deliveries.

Between the delivery of and payment for purchases made from November 9, 1878, to January 8, 1879, the demand intervened, which may be considered as a withdrawal of his acquiescence in the price at which they had been furnished. At the utmost claimant had a locus *penitentiw*only as to these transactions.

There is no principle of public policy involved in the statutory grant of commissions to owners of private dies; the amount of the commissions is not promotive of any great public interest, liberty, or morals; and as to it the maxim *modus et con-<oentio vincunt legem*applies. (Sedgwick on Statutes, 87; *Barrett*v. *The Dulce of*Bedford, 8 Term Bep., 602; *Buell*v. *The Trustees of Loelcport,*3 Oomst., 197; *Govett*v. Reed, 4 Yeates,'456; *Ransom*v. *Wew Yorlc,*4 Bl,, 160, 161; 20 Howard, *581.)*

*55In *Barrett*v. *The Dulce of Bedford*(8 Term Rep.) it was beld that even if e. 78,14 G-eo. 3, imposed upon the owner a moiety of the cost of a party wall, yet, by reason of the tenant’s covenant that the landlord should receive a clear yearly rent without deduction, the expense must be borne by the tenant.

2. It is contended by the United States that in section 1069 will be found all the exceptions to the force of the six-year statute of limitations. This is no account between merchants, even if the statute contained such exception. *(Spring*v. *Gray,*6 Peters, 163.)

But the courts have constructed an exception to the statute of 21 James 1st, which claimant seeks to engraft upon section 1069 Revised Statutes, to wit: “That every new item and credit in an account given by one party to the other is an admission of there being some unsettled account between them the amount of which is afterwards to be ascertained” (per Kenyon, *Gatlin*v. *Slcoulding*6, T. R., 189).

Claimants’ position therefore is that at every new contract of sale at an expressed price, or every time claimant transmitted money, in the credit entry of which he acquiesced, the United States admitted that every previous transaction extending back indefinitely should be examined and resettled, and that all the credits theretofore acquiesced in should be restated. ■ The only ground upon which this exception can possibly rest is that of an implied contract. We contend that if any such implied promise existed in this case it was only a promise to pay such balance as might be found due upon the basis of the entry itself and of the previous transactions, and not a promise to alter entries made with the acquiescence of the other party. There can be no antagonism between the express transaction and the implied contract arising therefrom.

It may be an admission that there is an unsettled balance, but it cannot be tortured into an implication that prices and commissions already expressly settled still remain unsettled.

Besides, the account, instead of being a running one, has been regularly balanced at the end of every month, and each balance thus ascertained and admitted to be due continued as an original and separate demand until merged in its successor. *(Toland*v. *Sprague,*12 Peters, 333, 334.) It is the accuracy of each one of these balances that is now assailed.

3. It is also suggested that the construction of section 3425 *56contended for by claimant would give more than 10 per cen-tum. For illustration, tbe manufacturer buying in less quantities than $500 would for every $100 receive stamps of the face value of $100, while claimant, according to its contention, would receive stamps of the face value of $111. It is clear this would make a difference between the two of 11 per cent.

OPINION.

Bichabdson, J.,

delivered the opinion of the court:

When this case was first submitted at a former term of the court it was upon demurrer to the claimants’ petition, and the single question then considered was whether or not the method of computing commissions on stamps sold to proprietors of matches and other proprietary articles who furnished their own dies, adopted and long followed by the Internal Revenue Bureau and Treasury Department, should be sustained.

Without at that time expressing an opinion as to the correctness of the rule, in passing judgment upon the demurrer, and without then much considering it, but regarding it, if not clearly correct, at least not free from ambiguity and doubt, we felt, on the authority of *Mrs. Alexanders Case*(12 Wall., 177) and *Pugh's Case*(99 U. S. R., 265), that we were not authorized to overthrow a construction of the statute so long acquiesced in by all parties concerned, in transactions of such great magnitude, and involving such large pecuniary interests, and we therefore sustained the demurrer.

Upon appeal, the Supreme Court, apparently from the course ofthe argument at the hearing there, and certainly not from any concession ever made by the officers of the Internal Revenue Bureau, or by any other officers of the Treasury Department regarding it as “ virtually admitted that the contention on the part of the appellant [the claimant] upon the provisions of the statutes is correct,” held, as has often been held by that court and by this, that *“the rule*which gives determining weight to contemporaneous construction put upon a statute by those charged with its execution applies only in cases of ambiguity and doubt.” Applying the rule to the case as virtually admitted in the Supreme Court, the judgment of this court on' demurrer was reversed. (105 U. S. R., 691.) It could not have been otherwise under those circumstances, when the contention *57of the officers of the Treasury Department was thus abandoned.

In point of fact the officers of the Internal .Revenue Bureau and of the Treasury Department charged with the execution of the law have always strenuously maintained that the rule adopted by them was in accordance with the will of Congress as shown by the course of legislation.

The first internal-revenue act passed, July 1,1862, authorized the Commissioner to sell adhesive stamps therein provided for, and to make an allowance to purchasers of not exceeding 5 per cent, as “commission,” with a proviso that proprietors of the proprietary articles named, who should furnish their own dies or designs, should be allowed a “discount” of 5 or 10per cent., according to the amounts jmrchased. (12 Stat. L., 477. §102, ch. 119.)

Thetwo words, “ commission” and “discount,” are not synonymous. They are similar, but not identical. “Commission,” in its technical as well as in its ordinary sense, generally signifies a percentage *upon the amount of money involved in the transaction,*as distinguished from “discount,” which is a percentage *taken from the face value*of the security or property negotiated. (Bouvier’s Law Dictionary, under “Commissions”; Ficklin’s National Arithmetic, 2d Book Advanced, paragraph 356, and other standard mathematical works.)

The Commissioner of Internal Revenue understood that Congress intended to use the two words in their distinct significations, as expressing two distinct methods of allowance. Accordingly, when he issued his first circular, after the Bureau was fairly organized, on the 12th of January, 1863, he gave notice that a commission would be allowed on adhesive stamps of 2 per cent, on purchases of $50, 3 per cent, on $100, 4 percent. on $500, and 5 per cent, on $1,000, *payable in stamps.*(Bontwell’s Direct and Excise Tax System, 391.) This language did not artistically express the idea of “commission,” but such was its practical effect. A percentage on the face value of stamps, payable in stamps, exactly equals a percentage on the money involved in the transaction, and so is strictly and technically a “ commission.”

No reference was madein this circular to the sale of proprietary stamps, and it seems to have been understood that Congress intended to apply to them a different rule of allowance.. *58But in less than two months, on the 3d of March, 1863, Congress, by express enactment, changed the word “ discount” in the Act of 1862 to “ commission,” by striking out the one and inserting the other, at the same time providing for a uniform commission of 10 per cent, on the whole amount, instead of 5 per cent, on small and 10 per cent, on large purchases. (12 Stat. L., 718, eh. 74.)

This change of percentage in the allowance for the i>urchase of proprietary stamps from “discount ” to “commission” certainly appears to have been made for the sole purpose of altering the law and sanctioning the construction given by the Commissioner, otherwise it was of no practical effect. If the percentage was to be deducted from the face value of the stamps after the word “commission” took the place of “discount,” then it was discount still, and the express alteration of the statute made no change in the law, and was as idle and useless in practical effect as it was inappropriate and inaccurate in language.

Whether or not the whole phraseology of the section of the statute was aptly chosen in every particular to express the correct idea of commission, it can hardly be conceived that Congress intended to allow *discount*after having stricken out that word and put in its place one susceptible of a different signification.

The Internal Revenue Bureau and the officers of the Treasury Department very naturally regarded the change in language as effecting a change in the law, and they have ever since allowed purchasers of proprietary stamps, who furnished their ■own dies, nob a “ discount” from the face value of the stamps purchased, but a “ commission ” computed on the amount of money involved in the transaction, and all the dealings of the parties have been in that more accurate form of account instead of by the formula of “ payable in stamps,” as the findings show.

This construction was acquiesced in by purchasers of proprietary stamps without objection after the year 1866 to near the time of bringing this action.

The decision of this case as it is now before us does not necessarily turn upon the correctness of the practice of the Treasury Department in the method of computing commissions, and •we have thus reviewed the subject in order to show that the *59officers charged with the duty of administering- the law from its first enactment to the present time have acted not without reason and due consideration, nor without the apparent sanction of Congress.

Upon the right to recover at the trial on the demurrer the Supreme Court had before it only the petition of the claimant, admitted by the demurrer to be true for the purposes of that hearing. Of this they say, “ The case made by the petition is not that of successive and independent purchases of stamps, settled for at the time when the commissions given by the law were paid by the Commissioner, the purchaser voluntarily accepting payment, not in money, but in other stamps; and new dealings of the same character, but separate as to each instance, had, afterwards, upon the same footing and by mutual understanding. On the contrary, the business was conducted upon the footing of a running account.”

The court further say that the dealing as presented by the petition *“*does not prove that he [the proprietor] was willing to waive his right to a commission upon the stamps so purchased. And it would be incumbent on the Government, in order to deprive him of his statutory right, not only to show facts from which an agreement to do so might be inferred, but an actual settlement based upon such an understanding.”

Since the final decision upon the demurrer, the defendants have had leave to answer over and have filed a plea of general issue, and the real facts have been proved by the parties and found by the court, and we are now called upon tp apply to these facts the rules of law laid down by the Supreme Court.

It now appears from these findings that the dealings of the parties disclose a case not only entirely different from, but exactly the opposite to that implied from the allegations in the petition alone upon which the Supreme Court was then called upon to pass judgment. It is shown that those dealings were successive and independent purchases, upon written orders fulfilled by the delivery of stamps of the face value of 10 per cent, .more than the money order; that in each case those stamps were received and receipted for by the claimant *in satisfaction*of the order; that within sixty days each order was paid for on that basis; that there was no running account beyond sixty days’ credit, or beyond the monthly settlements which were made on the basis of the orders and correspondence and upon *60tbe returns signed by the claimant and forwarded to the Commissioner, and that the accounting officers made frequent statements of balances on the same basis.

The Supreme Court say, “It would be incumbent on the Government not only to show facts, from which an agreement might be inferred, but an actual settlement based upon such an understanding.”

In our opinion the Government has now done both. The written contract set forth in the bond (Finding II) was that the claimant corporation should on or before the tenth day of each and every month make a statement of their account upon Form *55.},*showing the balance due at the commencement of the month, the amount of stamps received, and the amount of money remitted by it during the month, and the balance due from it at the close of the month next preceding; and also that the company should pay all and every sum or sums of money it might owe the United States for stamps delivered or forwarded to it “ according to their request or order, within the time prescribed for payment for the same according to law;” that is, each purchase was to be paid for within sixty days of delivery of the stamps.

The statute fixed a limit to the term of credit for each purchase, and this agreement fixed in addition thereto the terms of settlement, not payment merely, but an accounting between the parties, an accord and satisfaction. So the parties always did their business from the commencement without objection on the part of the claimant for nearly nine years and until this action was about to be instituted. We will review the course of business.

Each purchase of stamps was upon a written order, separate and distinct from all other purchases. The claimant ordered, say, “three thousand dollars’ worth of match stamps,” as shown in paragraph 1 of Finding III. The Commissioner thereupon forwarded stamps of the face value of $3,300, with a letter stating that they were *in satisfaction*of the order referred to (paragraph 2 of Finding III), and the claimant, in writing signed by its proper officer, returned an acknowledgment of the receipt of stamps of the face value of $3,300, *in satisfaction*o£ the order for three thousand dollars’ worth of stamps. (Paragraph 3 of Finding III.)

These are facts from which an agreement may not only be *61inferred, but which must be held to constitute an explicit contract, a sale and purchase at a price fixed and agreed upon by the parties.

The course of business subsequent to the delivery of stamps and to the acknowledgment by the claimant, reaffirms the contract as thus understood by the parties. The claimant was to pay for each delivery within sixty days, and so it always did. At the end of each sixty days after the fulfillment of an order that order was invariably paid.

In one sense there was a running account for sixty days; that is, as to terms of payment. After the first order was given, and before the sixty days for payment had expired, there were many intervening orders of like kind. It was not convenient to send a separate remittance of money in payment for each separate delivery of stamps, when, as the findings show, more than sixteen hundred such deliveries were made, and the claimant accordingly made remittance in sums to suit its own convenience, taking care always that fullpayment shouldbe effected before the term of credit on any one order had expired. If at any time a remittance covered more than was payable at its date, it was practically a payment of what had matured, and the balance went towards payment of the next maturing order. In so large a business the parties did not stop to adjust each transaction separately. But they did settle each month, as we have shown; and such settlements were recognized by the correspondence had upon each remittance of money, as well as agreed upon in the bond, and were regularly made every month throughout the whole period of nine years. In acknowledging each remittance the Commissioner gave the claimant credit for the money remitted, with 10 per cent, added thereto as commissions, and authorized it “ to take credit for the above amount on Form *55\*for the current month,” as shown by paragraph 5 in Finding III.

As to periods of settlement, accord, and satisfaction, we may therefore consider that there was a running account for each period of one month, as appears from the specimen monthly account-current set forth in paragraph 10 of Finding III. These accounts-current were regularly sent forward to the accounting officers, and by them adjusted and balances stated from time to time in accordance with the practice of the Treasury Department, of which the claimant had due notice.

*62There was not swell a general running account between these parties for the period of nine years from the commencement of theirdealings as entitles the claimant to a statementof its whole account for that time, opening its own monthly settlements and the settlements of the accounting officers, setting aside its own, sixteen hundred contracts, and making to it a greater allowance than was from time to time agreed upon, even if it would have been entitled to such greater allowance had it not otherwise contracted.

In our opinion, under the rules laid down by the Supreme Court in this very case, a,s well as in the case of Francis B. Pray, decided by that court at the present term (106 U. S. B., 594), the claimant corporation is concluded by its own agreements and settlements; that it has no cause of action, and that its petition must be dismissed.

In this result the claimant suffers no injustice. It is to be presumed from its long acquiescence in paying for stamps in the manner and to the extent shown by the findings, that it added the whole amount thus paid in taxes to the value of its articles manufactured, and charged the same to the purchasers. If so, the consumers finally paid the taxes, while the money recovered back, if any, would go not to the consumers, but to the claimant as extra and unexpected profits.

Judgment will be entered dismissing the petition.