Reporter's Statement of the Case 66 But the breach declared upon is not of this alleged contract but of the "contract for the manufacture of 40,000 to 50,000 tons of steel," which it was said was repudiated and breached." The most that can be said as foundation for such a contract is that certain agencies having no power to contract informed the petitioner that it would receive orders for this quantity of steel. The statement seems to preclude necessity for discussion. There is not shown to have been any such contract either formal or informal within the purview of the Dent Act. There is no cause of action stated. It is therefore adjudged that the demurrer be sustained and the petition dismissed. GRAHAM, Judge; HAY, Judge; BOOTH, Judge; and CampBELL, Chief Justice, concur. CATHERINE M. DREXEL v. THE UNITED STATES 1 [No. D-524. Decided November 16, 1925] On the Proofs Taxes; income from trust estate. The annual distributive share of the net income of a trust estate is subject to the income tax, revenue act of 1921, 42 Stat. 227. The Reporter's statement of the case: Mr. Barry Mohun for the plaintiff. Mr. Alexander H. McCormick, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defend ant. The court made special findings of fact, as follows: I. The plaintiff, Catherine M. Drexel, is a citizen of the United States and a resident of Cornwells Heights, State of Pennsylvania. II. Francis A. Drexel, father of plaintiff, a citizen of the United States and a resident of Philadelphia Pa., died on February 15, 1885. Said Francis A. Drexel left a last will and testament and codicil thereto, which were shortly after 1 Writ of certiorari denied. Reporter's Statement of the Case his death duly admitted to probate and record by the orphans' court for the city and county of Philadelphia as the last will and testament and codicil of said Francis A. Drexel. A certified copy of the aforesaid will and codicil is attached to the petition filed herein on July 15, 1924, and by reference is made a part hereof. The seventh article of said will provides as follows: "The remaining nine-tenths part of all that, my said residuary estate, to be called the trust estate, I hereby give, devise, and bequeath to the said four trustees hereinbefore appointed (and should they at any time during the continuance of the trust be reduced as aforesaid to three in number, then to said three remaining trustees), their heirs, successors, executors, administrators, and assigns, in trust, nevertheless, and for the following uses and purposes and none other, to wit: In trust, to collect the rents, issues, profits, dividends, and interest and income of the said trust estate (Francis A. Drexel), and after paying and deducting therefrom all taxes, charges, repairs, and other necessary current expenses to pay the balance or net income as received, one-third part thereof to each of my three daughters, namely: Elizabeth L. Drexel, Catherine M. Drexel, and Louise B. Drexel, for and during their natural lives, respectively * * III. Pursuant to the terms of said will plaintiff received during the calendar year 1923 from the trustees, as aforesaid, the sum of $217,426.98, which came to plaintiff solely as her distributive share of the net income of said trust estate for said year 1923. IV. On March 15, 1924, plaintiff filed with the collector of internal revenue for the first district of Pennsylvania, with office in Philadelphia in said State, an income-tax return for the calendar year 1923 under the revenue act of 1921. The total amount reported in such return as gross income was $218,765.18, of which sum $217,426.98 was, as heretofore shown, received by plaintiff from the trustees of the trust estate created by the last will and testament of said Francis A. Drexel. Except for the inclusion in said return of the aforesaid sum of $217,426.98 received by the plaintiff from the trust estate created by her father's will, as above shown, plaintiff would have had no taxable income for the year 1923. V. The aforesaid return of plaintiff indicated a total tax liability of $74,390.32 for the vear 1923. One-fourth thereof, Opinion of the Court or $18,597.58, was, if due at all, due on March 15, 1924, and such amount was on that date paid to the aforesaid collector of internal revenue involuntarily and under written protest. VI. The said sum of $18,597.58 so paid by plaintiff was duly turned over and delivered to the United States by said collector of internal revenue in the usual and ordinary course of his business. VII. On or about May 12, 1924, plaintiff duly filed a claim for refund of the aforesaid $18,597.58 with the Commissioner of Internal Revenue in accordance with the provisions of law in that regard and the regulations of the Secretary of the Treasury in pursuance thereof. On June 16, 1924, the Commissioner of Internal Revenue rejected and denied said claim and has continuously since declined and still declines and refuses to refund to plaintiff the moneys, or any part thereof, asked and demanded in her claim as aforesaid. The court decided that plaintiff was not entitled to recover. BOOTH, Judge, delivered the opinion of the court: The facts of this case are stipulated. Plaintiff concedes that the case must be differentiated from the case of Irwin v. Gavit, 268 U. S. 161, if recovery is to obtain. It is difficult to perceive the distinction. As a matter of fact the Gavit case is so directly in point that we have no hesitancy in applying it here. In our opinion the issue is stare decisis, and nothing is left for us to do but dismiss the petition. We have not ignored the argument of counsel; on the contrary, we have given it most careful and deliberate attention. With it, however, we can not agree. Decisions of the Supreme Court determinative of an issue precisely the same as the case presented for our adjudication are manifestly conclusive, and it would serve no useful purpose for this court to repeat a discussion and argument which have been effectually closed in this way. Suffice it to say that we are firmly convinced that the Gavit case precludes a recovery herein. The petition is dismissed. It is so ordered. GRAHAM, Judge; HAY, Judge; DOWNEY, Judge; and CAMPBELL, Chief Justice, concur. Reporter's Statement of the Case L. SCHEPP COMPANY v. THE UNITED STATES [No. B-148. Decided December 7, 1925] On the Proofs Executed contract; recovery upon quantum valebat.-Where no contract has been signed as required by section 3744, R. S., and plaintiff has supplied and the Government accepted and used certain material, plaintiff is limited in its recovery to a quantum valebat. The Reporter's statement of the case: Mr. Raymond N. Beebe for the plaintiff. Davies & Jones were on the briefs. Mr. Ralph C. Williamson, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. The court made special findings of fact, as follows: I. The plaintiff is a corporation organized and existing under the laws of the State of New York, having its principal office in the city of New York, and is, and has been during all of the times hereinafter mentioned, engaged in the business of buying, manufacturing, and selling coconut and coconut products. II. In the summer of 1917, Lieut. H. B. Foster, Sanitary Corps, United States Army, visited plaintiff and began negotiations for the purchase from plaintiff of its entire output of coconut shells for use in the manufacture of carbon for gas masks. Plaintiff made an offer of $5.60 a ton, to which Lieutenant Foster agreed. It was further agreed that deliveries would begin at once. The first delivery was made on August 20, 1917, and the second delivery was made on August 30, 1917, and continued at intervals thereafter. Lieutenant Foster had no authority to make a contract with plaintiff binding the United States. On August 31, 1917, or a few days thereafter, the proper official of the War Department forwarded to plaintiff for execution a contract dated August 31, 1917, the price named in which was $5.60 per ton. On January 9, 1918, plaintiff wrote to the Sanitary Corps requesting an increase of $2 a Reporter's Statement of the Case ton over the price named in the contract referred to above. In a letter from the Sanitary Corps, signed by William D. Y. Kay, to plaintiff, dated January 12, 1918, it was stated, among other things: 66* * * You further inform us that in spite of the fact that these contracts expressly stipulate that you are to give your entire output of coconut shells to this department you have been using a part of your output for fuel for creating heat in your boilers. We hereby order you, as we have requested on several occasions in the past, to supply us with your entire output of coconut shells. "We further desire to have you immediately sign the contracts which have been in your hands for a long period of time." The contracts referred to were the original and duplicate. The contract of August 31, 1917, was signed on January 14, 1918, and returned to the War Department. This contract was never signed on behalf of the United States and was lost and can not be found. The consideration stated therein was $5.60 per ton for coconut shells, and appears to have been for plaintiff's entire output for the duration of the war. Otherwise its terms are not shown. After the date of the contract the following order, without date, was sent to plaintiff by Maj. Bradley Dewey, Sanitary Corps, through Lieutenant Foster: "Subject: Contract dated August 31, 1917. Order No. 1014. "1. Referring to the above contract, it is requested that the following material be shipped direct to the point specified: "700 tons of coconut shells, "To: The Astoria Light, Heat & Power Co., Lawrence Point, Astoria, L. I. "2. This material is being accepted f. o. b. N. Y. C. (If the f. o. b. points are not the addresses specified above, the shipments should go forward on Government bills of lading which will be furnished you on request by the depot quartermaster, 39 Whitehall St., N. Y. C. It will be necessary that you advise him the number of packages in each shipment, together with the contents and gross weight of each, as well as the shipping point and such additional information as he may desire.) . |