
    FREDERICK SEGGERMANN, et al., Plaintiffs v. NAPOLEON VALENTINE, et al., Defendants.
    
      Contract for purchase of property by plaintiffs and sale to defendants at a price named, together with freight charges, actual expenses advanced and one per cent, additional—Question as to expenses.
    
    Subsequent to the delivery of the goods, it appeared .that they had been ^ undervalued at the Custom House, in the original entry, and plaintiffs ' were compelled to pay $474.38 additional duties, which they sought to recover from defendants as actual expenses incurred, etc. Defendants claimed that said $474.38 was paid as a fine or penalty for an under-valuation of the property for which defendants should not be held liable, etc.
    
      Held, It matters not whether the payment be considered as for a fine for under-valuation or for an additional duty ; if it was for an expense advanced, within the meaning of the term “ expenses ” as used in the contract, the defendants must pay it. A fair interpretation of the word leads to the conclusion that it included the duties or fines. The parties so interpreted the contract in the payment of the first duties imposed, and as the fine does not appear to have been imposed through any fault of plaintiffs, the exceptions should be overruled.
    Before Dugro and Gildersleeve, JJ.
    
      Decided July 5, 1892.
    The trial judge directed a verdict for the plaintiffs in this case for amount claimed in the complaint, ordering the exceptions to be heard in the first instance at the general term.
    
      Charles Currie, attorney, and W. Wickham, Smith of counsel, for plaintiffs.
    
      John H. Parsons, attorney and of counsel, for defendants.
   By the Court.—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 he 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, Avhich 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, hut admits the payment of $66.10 as duties and sets forth that the $474.38 referred to in the complaint Avas 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 defence to the plaintiffs’ claim.

Now, 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.

Gildersleeve, J., concurred.  