
    Frederick Seggerman et al., Resp’ts, v. Napoleon Valentine et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed July 5, 1892.)
    
    Contract—Importation—Duties and fines.
    Plaintiffs imported certain goods, one-half of which were for defendants, under a contract by which defendants were to pay the “actual expenses advanced ” by plaintiffs. Defendants paid their one-half of the duty, but upon a reappraisement it was discovered that there had been an undervaluation and an additional duty was levied which plaintiffs had to pay. Held, that such additional duty, whether considered as a duty or a fine, was included in the term expenses in the contract, and having been incurred without plaintiffs’ fault, they were entitled to recover one-half thereof from defendants.
    Exceptions ordered heard in the first instance at general term upon a motion to set aside a verdict and for a new trial.
    
      Charles Currie, for resp’ts; John H. Parsons, for app’lts.
   Dugro, J.

The exceptions were ordered to be heard in the first instance at general term.

In July, 1890, plaintiffs and defendants contracted as follows: The plaintiffs agreed to take 5,000 crates of onions to be imported at a stated cost and freight, paying defendants cash on arrival, and taking all risk of importation; the defendants to insure goods under their policy and to pay plaintiffs for the actual expenses advanced; there were other terms in the contract unnecessary to state.

Plaintiffs imported 5,000 crates of onions, one-half for defendants, and received payment from defendants of all that was claimed, including one-half the amount of duty paid upon the whole original import entry.

Subsequently upon a reappraisement of the goods it appeared that they had been undervalued in the original entry at the" custom house, and that the duty paid was $36.50 less than that which should have been paid. By reason of this fact an additional duty of $912.06 was payable under the laws of the United States on the whole importation.

These two amounts the plaintiffs paid, and they now ask that the defendants contribute one-half.

The complaint sets forth that import duties to the amount of $510.48 accrued, which plaintiffs paid on defendants’ behalf and for their account; and on account of which there is still unpaid $474.38.

The answer denies that these duties were paid, but admits the payment of $66.10 as duties and sets forth that the $474.38 referred to in the complaint was paid, if at all, as a fine or penalty for an undervaluation in the entry of the onions for which the defendants should in no manner be held liable.

It will be observed that the defendants contend in their answer that the mere fact that the $474.38 was paid as a fine or penalty for an undervaluation is sufficient defense to the plaintiffs’ claim.

How, it matters not whether the payment be considered as for a fine for undervaluation or for an additional duty; if it was for an expense within the meaning of the term “ expenses,” as used in the contract, the defendants should pay it.

A fair interpretation of the word leads to the conclusion that it included the duties or fines. The parties themselves interpreted it to include the import duty.

The plaintiffs were necessarily compelled to pay the amount in question, and as the fine does not appear to have been imposed through any fault of plaintiffs (in fact it, is not pleaded to have been imposed through the plaintiffs’ fault), the exceptions should be overruled and the plaintiffs should have judgment upon the verdict, with costs.

Gtldersleeve, J,, concurs.  