order as will reserve all rights of the complainant in the event it desires hereafter to proceed against the respondent in some court having jurisdiction in the state or district of her domicile.

Let there be a decree, under rule 21 (31 C. C. A. clxiii, 90 Fed. Id.) dismissing the bill for want of jurisdiction, the same to be without prejudice, and without costs.

ERIE CITY IRON WORKS v. THOMAS et al.

(Circuit Court, S. D. New York. July 3, 1905.)

1. CONTRACT-ACTION FOR BREACH-PLEADING.

A complaint in an action to recover the price of certain bonds of a corporation, which alleges that plaintiff was induced to sell machinery to the corporation and to accept such bonds in part payment on the promise of defendants, who were officers of the corporation, to purchase the bonds at par at any time within six months, sets up a valid contract, not unilateral nor lacking in consideration; the agreement of the plaintiff to sell the bonds being presumed from the facts pleaded.

2. SAME.

Where defendants contracted to purchase certain bonds from plaintiff at a stated price, plaintiff, on their refusal to accept and pay for the bonds when tendered, was entitled at his election to treat the bonds as the property of defendants, and maintain an action at law for the purchase price; and the fact that the prayer of the complaint was that defendants be compelled to accept and pay for the bonds does not make the suit one in equity for specific performance, nor render the complaint demurrable. 8. COMPLAINT-Demurrer-INAPPROPRIATE PRAYER.

A complaint which states facts constituting a cause of action is not demurrable because the prayer is for relief which does not conform to the case made.

[Ed. Note.-For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 143, 439, 440.]

At Law. On demurrer to complaint.

Gilbert E. Roe, for plaintiff.

Richard A. Irving, for defendants.

HAZEL, District Judge. This is an action at law to recover the sum of $5,000, the par value of certain 6 per cent. gold bonds of the Empire State Sugar Company, a New York corporation. The defendants demurred to the complaint on the ground that a cause. of action is not stated. The complaint alleges that the plaintiff entered into a contract with the Empire State Sugar Company, by which, in consideration of the payment of $18,000, it furnished said corporation with boilers, machinery, etc., and as a part of the purchase price therefor, being induced so to do by the promise of the defendants, as hereinafter stated, accepted five bonds of the corporation, secured by a mortgage. Upon this point the complaint alleges:

"That as a part consideration for entering into said contract, and as an inducement to the complainant to enter therein, and for other valuable consideration, as plaintiff is informed and verily believes, the said defendants jointly and severally promised and agreed with this plaintiff at said time that if this

plaintiff would accept the above-mentioned bonds in part payment on said contract, as above stated, the said defendants would forthwith buy for cash the said bonds of plaintiff at their face or par value at any time within six months after the delivery thereof."

The bonds were not delivered on January 1, 1901, as agreed, but an interim certificate was issued at that time to the plaintiff. Subsequently, on March 28, 1901, the bonds were delivered to, and accepted by, the plaintiff. After the issuance of the certificate, and also after the delivery of the bonds (within the six-months period), the plaintiff made a tender thereof to the defendants, who, however, refused to accept them. The principal question is whether the promise of the defendants, who were officers and directors of the corporation, to purchase the bonds within the time specified, is void for lack of consideration. Defendants contend that there was no binding obligation upon the plaintiff to sell the bonds, and therefore the agreement is unilateral. This proposition is untenable. The complaint clearly indicates that the plaintiff was induced by the defendants to make the contract with the sugar company and to part with its property in reliance upon the promise of the defendants to afterwards take the bonds off its hands. Under the circumstances, plaintiff's consent to sell the bonds to the defendants may be presumed. A concurrent binding obligation to do so existed. Ketchum v. Duncan, 96 U. S. 659, 24 L. Ed. 868; Mason v. Decker, 72 N. Y. 595, 28 Am. Rep. 190. In the last-mentioned case the plaintiff was induced to furnish a sum of money to the corporation in which he was a stockholder upon the agreement that the defendant, another stockholder, would in a specified time take all of the plaintiff's stock and bonds at the cost price.. The defendant being unwilling later to fulfill the contract, another agreement in lieu of the first was made, by which the defendant in writing bound himself to take the plaintiff's capital stock only at a certain price. The defendant failing to keep the agreement, an action was brought against him by the plaintiff to enforce it. It was there contended, as here, that the agreement was not mutual, the plaintiff not having expressly agreed to sell the stock; therefore there was no consideration expressed in the writing. The court held that the prior parol agreement to sell was valid, and plaintiff could treat the stock as belonging to the defendant. That case is thought to be in close analogy to the case at bar.

Defendants also insist that the complaint alleges a cause of action for specific performance, and the point is urged, inter alia, that the facts averred have the characteristics of an equitable action to compel the defendants to fulfill their promise to buy the bonds. As already intimated, the agreement to purchase the bonds is sufficiently alleged, and in the circumstances plaintiff had the election of his remedies. Dustan v. McAndrew, 44 N. Y. 72. The fact that the prayer demands that the defendants be required to accept the bonds, and that plaintiff have judgment in the sum of $5,000, is immaterial. There are many cases to be found which hold that the prayer for relief is not demurrable, inasmuch as it does not sustain the nature of the action. O'Brien v. Fitzgerald,

143 N. Y. 377, 38 N. E. 371; Bell v. Merrifield, 109 N. Y. 202, 16 N. E. 55, 4 Am. St. Rep. 436; Bateman v. Straus, 86 App. Div. 540, 83 N. Y. Supp. 785. And in 16 Ency. of Pleading & Practice, 776, it is held that, the prayer being only a matter of form, the cause of action, if properly stated, cannot be reached by demurrer. Demurrer is overruled, with costs.

HYAMS v. UNITED STATES.

(Circuit Court, D. Massachusetts. July 17, 1905.)

No. 1,441.

1. COURTS-United StatES CIRCUIT COURTS-CLAIMS AGAINST UNITED STATES— TUCKER ACT-ACTIONS-FINDINGS.

Under Tucker Act March 3, 1887, c. 359, § 7, 24 Stat. 506 [U. S. Comp. St. 1901, p. 755], providing that in proceedings on claims against the United States it shall be the duty of the court to cause a written opinion to be filed in the case setting forth the specific findings by the court of the facts therein and the conclusions of law on all questions of law involved in the case, and to render judgment thereon, such opinion is not the usual opinion of the trial judge, but constitutes a part of the record to enable the public and the appellate court to find on the record a formal statement of the Circuit Court's findings both on questions of law and fact and the reasons for such findings.

2. SAME-COMMISSIONER'S DECISION-KEVIEW.

In proceedings to recover a tobacco rebate as authorized by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277], the whole claim having accrued since the passage of Tucker Act, Act Cong. March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], as amended by Act June 27, 1898, c. 503, 30 Stat. 494 [U. S. Comp. St. 1901, p. 753], a rejection of the claim by the commissioner of internal revenue is reviewable by the Circuit Court under such act.

3. SAME EVIDENCE.

Where in a suit for tobacco rebate, as authorized by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277], claimant presented four witnesses, who testified explicitly to the amount of tobacco claimed for, and such testimony was uncontradicted, the mere fact that the government claimed that the space in the stores was obviously inadequate for holding the amount of tobacco testified to was insufficient to show that the claim was fraudulent.

4. SAME-PROOF-COMPLIANCE WITH INSTRUCTIONS.

A strict compliance with a clause in instructions on the back of a blank proof for tobacco rebate, requiring the witnesses at the time of taking the inventory to each count the packages of the several denominations mentioned in the inventory, keep a separate account of the same on separate sheets of paper, make computations, etc., was not a condition precedent to the claimant's right to the rebate, authorized by Act Cong. April 12, 1902, c. 500, § 4, 32 Stat. 97 [U. S. Comp. St. Supp. 1903, p. 277].

Charles W. Bartlett and Wilfred Bolster, for petitioner.
William H. Garland, Asst. U. S. Atty.

HALE, District Judge. This case comes before the court under what is known as the "Tucker Act," approved on March 3, 1887, c. 359, 24 Stat. 505 [U. S. Comp. St. 1901, p. 752], as amended June 27, 1898, c. 503, 30 Stat. 494 [U. S. Comp. St. 1901, p. 753]. The

petition recites the section of the statute which it relies upon. It further sets out that on the 1st day of July, 1902, the petitioner was a dealer in tobacco and snuff, and that he had in his possession and owned certain original and unbroken factory packages of smoking and manufactured tobacco, snuff and cigars, upon which the taxes had been paid, to wit, an amount of 45,788 pounds, in a certain store then located at 904 Washington street, in Boston; and that he had at the same date in his possession and owned the further amount of 3,407 pounds located in another store, No. 764 Washington street, in said Boston, and that upon said goods there was, pursuant to the said section of said act, due and allowable to the petitioner the sum of $1,771.92; that the petitioner's claim for allowance or drawback was duly presented in accordance with law within 60 days after the 1st day of July, 1902; that the petitioner's stock was duly inventoried, and his claim properly verified, taken, and presented in accordance with all legal rules and regulations made by the commissioner of internal revenue, under the provisions of law; but the said drawback, although requested, has not been paid to the petitioner. The answer of the United States denies every material allegation of the petition. A motion to dismiss was duly filed, setting out that the court has not jurisdiction within the second section of the act of March 3, 1887, because the manifest intent of the act of April 12, 1902, was to leave the ascertainment of the fact whether or not claimants for rebate had on hand any tobacco to the officers of the Internal Revenue Department, and did not provide that their decision should be reviewable by this court. The motion to dismiss also takes the ground that the petitioner has not produced evidence showing that his claim is of the clear value of upwards of $1,000.

After the hearing of the case before this court, the respondent seasonably filed a motion for judgment for the United States for the following reasons:

"(1) That the petitioner, in presenting his claim for rebate, did not comply with the provisions of the act of April 12, 1902, and the regulations established pursuant thereto by the commissioner of internal revenue. (2) Because the petitioner made a willfully false and fraudulent claim for rebate. (3) Because the commissioner of internal revenue, in view of the dubious, uncertain, and conflicting evidence produced by the claimant in support of his claim, was justified in disallowing the same. (4) Because the evidence produced by the petitioner here in support of his action is so dubious, uncertain, and conflicting that this court cannot determine what, if any, portion of petitioner's claim should have been allowed, and must therefore find for the defendant. (5) Because the evidence produced by the petitioner here in support of his action is so manifestly false in essential particulars that this court cannot properly find that any portion of petitioner's claim should have been allowed, and must therefore find for the defendant."

The cause was fully heard before this court in May, 1905. Testimony was offered on both sides. Under section 7 of the Tucker act (24 Stat. 506 [U. S. Comp. St. 1901, p. 755]) it becomes the duty of the court "to cause a written opinion to be filed in the cause setting forth the specific findings by the court of the facts therein. and the conclusions of the court upon all questions of law involved

in the case, and to render judgment thereon." In U. S. v. Swift the United States Circuit Court of Appeals in this circuit have lately sent down an opinion (139 Fed. 225), Judge Putnam_speaking for the court, in which that court comments upon the Tucker act and the proceedings in causes under that act. In discussing the opinion which the court must file under that act, Judge Putnam says: "Under the statute that opinion is not to be regarded as the usual opinion of the trial judge, but must be accepted as a part of the record." It seems clear that the purpose of the opinion is to enable the public and the appellate court to find upon the record a formal statement of the findings of the Circuit Court, both upon questions of law and fact and the reasons for such findings.

As the court has already observed, the right to recover in this claim is based upon the Tucker act, which gives to the Circui Court jurisdiction of all claims founded upon any law of Congress where the amount of the claim exceeds $1,000, except war claims and claims rejected by any department authorized to hear and determine the same, before the passage of the act of 1887. The contention of the learned counsel for the United States is that the claim in the case at bar is one upon which the decision of the head of the department is final. The argument of the learned counsel upon this point is complete and exhaustive, but the court cannot take the view of the law which he urges. In Rand v. U. S. (D. C.) 36 Fed. 671, Judge Webb held that "in a claim of the United States commissioner for fees for services, his charges having been disallowed by the First Comptroller of the Treasury, the portion of the account rejected by the comptroller prior to March 3, 1887, was not within the jurisdiction of the court, but that as to the portion of the account since that date the court had jurisdiction.' Judge Webb based his decision upon Bliss v. U. S. (C. C.) 34 Fed. 781. While the question is not by any means beyond doubt, it seems the duty of this court to take the same view of the law that was taken in the cases just cited. There seems to be good reason to hold that the rejection of an account by the commissioner of internal revenue may be reviewed under the provisions of the Tucker act, unless such rejection was previous to the passage of that act. The whole of the claim in the case at bar accrued since March 3 1887. For the purposes of this case the court finds that it was not the intention of Congress to give final jurisdiction in the premises to the commissioner of internal revenue, but that this court has jurisdiction under the Tucker act.

By the pleadings the question of fact is raised whether or not the petitioner had and owned on July 1, 1902, the amount of tobacco which he claims to have had. The petitioner offers four witnesses, whose testimony is explicit upon this point. The learned counsel for the respondent claims, however, that the evidence produced by the petitioner is manifestly false, that the space in the stores was obviously inadequate for holding the amount of tobacco testified to, and that the whole claim is absolutely fraudulent. But the testimony of the petitioner's witnesses is clear, and is in terms uncon