
    HODGMAN RUBBER CO. v. DUMAINE et al. In re AMOSKEAG MFG. CO.
    No. 3279.
    Circuit Court of Appeals, First Circuit.
    Dec. 8, 1937.
    Wallace M. Cohen, of Boston, Mass. (Fox & Orlov, of Boston, Mass., on the brief), for appellant.
    David R. Pokross, of Boston, Mass. (Howard W. Brown, Charles M. Storey, and Peabody, Brown, Rowley & Storey, all of Boston, Mass., on the brief), for appellees.
    Before BINGHAM, WILSON, and MORTON, Circuit Judges.
   BINGHAM, Circuit Judge.

The facts and the contracts in this case are the same as the facts and contracts set out in Golding Brothers Co., Inc., et al. v. Dumaine et al., Trustees, 1 Cir., 93 F.2d 162, this day decided, with the exception that in this case the Amoskeag Manufacturing Company, the seller, paid the United States the processing tax and, although a claim has been filed for a refund, it has received nothing back from the United States.

In so far as the rights of the parties depend upon the construction of the contracts, they are concluded by our decision in the case above referred to, which bars recovery.

Furthermore, inasmuch as the Amoskeag Company, the seller, has paid the tax to the United States and received nothing back, if it could be inferred from the contracts that the promise of the buyer was ,to pay the seller a stated price for the goods and also pay him an additional sum to pay the tax, the appellant could not, even then, maintain its claim for the amount of the tax, first, for the reason that the Amoskeag Company would have complied with its contract by paying the government the tax, and, second, because it could not be said to have unjustly enriched itself at the appellant’s expense, for it paid the tax and has not been reimbursed through a refund of it.

The order or decree of the District Court is affirmed, with costs to the appellees.  