Conclusion of Law

128 C. Cls.

Additional payments were made to the Collector of Internal Revenue at New Orleans, Louisiana, in the following amounts and on the following dates: January 26, 1950, $70,000.00; July 29, 1950, $13,489.63.

19. On August 15, 1951, claims for refund were filed by Mr. Lieber for the years 1945, 1946 and 1947, by Clara L. Lieber for the years 1945, 1946, and 1947, and by Mr. and Mrs. Leiber jointly for the year 1948, seeking refunds of income taxes paid for those years. The claim for refund for 1945, filed by Mr. Lieber, stated that refund was claimed on the following grounds:

In August, 1943, taxpayer with other members of his family formed a partnership by the name of Philip Lieber Company to deal in real estate. The partnership proved a profitable venture and each partner reported his income and paid a tax on it. The examining agent erroneously treated the entire income of the partnership as owned by Philip Lieber and his wife, Mrs. Clara L. Lieber.

In about 1930 a partnership was formed by taxpayer and other members of his family, the name of which is Building Service Company. For many years prior to 1945 its affairs were controlled and its business managed by other members of the family and taxpayer likewise many years ago disposed of his interest in this partnership to other members of the family. Subsequently at the request of several of the partners among whom a disagreement had arisen, taxpayer permitted an interest in the partnership to be placed in his name as trustee for four of the partners. The Revenue Agent held taxpayer to be a "partner in commendam" and taxed him with the Building Service Company income which had been previously reported by the persons for whom he was trustee. This holding is erroneous.

Each of the other claims referred to above contains substantially the same language.

On December 28, 1951, these claims for refund were rejected by the Commissioner of Internal Revenue by registered mail.


Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law plaintiffs are entitled to recover.



The entry of judgment on the original and amended petitions and counterclaim is suspended to await the filing of a stipulation by the parties showing the amount due plaintiffs computed in accordance with this opinion, or, in the absence thereof, until the incoming of a report of a commissioner showing the amount due.


[No. 683-53]


[No. 684-53]

[Decided May 4, 1954]

On Defendant's Motions To Dismiss the Petitions

Taxes; redemption of Internal Revenue stamps on tobacco products destroyed by fire.-In a suit to recover the value of Internal Revenue stamps affixed to packages of tobacco products, where the stamps together with the tobacco products, were totally destroyed by fire when the trailer truck in which they were being shipped was overturned and burned, the defendant's motions to dismiss the petitions are dismissed. The decisions in Stephano Brothers v. United States, 116 C. Cls. 503, and Philip Morris & Co., Ltd. v. United States, 120 C. Cls. 703, are affirmed.

Internal Revenue 1953

Same. Following the decision in United States v. American Tobacco Company, 166 U. S. 468, it is held that, in the instant case, the plaintiffs have not lost their rights to have the stamps redeemed because they have been reimbursed by others for the value of the stamps.

Internal Revenue 1953

Mr. J. A. Marshall for plaintiffs. Mr. Hugh H. Obear, Messrs. Sands, Marks & Sands, and Messrs. Douglas, Obear Campbell, were on the briefs.

Opinion of the Court

128 C. Cls.

Mr. Benjamin H. Pester, with whom was Mr. Assistant Attorney General H. Brian Holland, for defendant. Messrs. Andrew D. Sharpe and Ellis N. Slack were on the brief.

MADDEN, Judge, delivered the following opinion:

The petitions allege that the plaintiffs are manufacturers of tobacco products, each having a factory at Richmond, Virginia. In December of 1951 each withdrew from its factory a large number of unbroken packages of tobacco products, those of Philip Morris consisting of cigarettes and smoking tobacco and those of Lorillard consisting of cigarettes and cigars. They affixed the proper number of Internal Revenue stamps to the packages, and delivered the packages to the Overnite Transportation Company, a trucking company, for carriage to various customers of the plaintiffs who had ordered them. The truck trailer in which the packages were placed ran over an embankment near Danville, Virginia, overturned and burned, and the packages of tobacco products and the stamps affixed to them were completely destroyed by fire.

The plaintiffs filed claims with the Treasury Department for the refund or redemption of the stamps. The claims were denied.

The Aetna Insurance Company had issued one or more policies of insurance to the Overnite Transportation Company, covering the liability of that company as a carrier or bailee of the goods of the plaintiffs, and it paid to each of the plaintiffs the value of the tobacco products and affixed stamps which had been destroyed. Each of the plaintiffs brings its suit for the use of the Aetna Insurance Company.

The Government, in support of its motion to dismiss the petitions raises again the question of the redeemability of stamps affixed to tobacco products and later completely destroyed. We considered that question in Stephano Brothers v. United States, 116 C. Cls. 503, discussing the pertinent statutes and Treasury Regulations, and determined that the plaintiff could recover the value of stamps destroyed under circumstances such as those here present. We again so decided in Philip Morris & Co., Ltd., v. United States, 129 C. Cls. 703. We adhere to those decisions.


Opinion of the Court

In both the Stephano and Philip Morris cases, supra, the plaintiffs sued for the use of insurance companies which had reimbursed the plaintiffs for their losses. In those cases the Government raised no question as to the propriety of that procedure. In the Stephano case, we referred to the case of United States v. American Tobacco Company, 166 U. S. 468, in which it was held that a suit by the Tobacco Company for the use of the insurance company which had insured the Tobacco Company and had reimbursed it for its loss was proper. The Government urges, however, that in the instant case the insurance company had not insured the plaintiffs, but had issued its policy to the carrier, and hence is too far removed, so far as legal relations are concerned, from the plaintiffs, to be a beneficiary of this suit.

We do not have the insurance policy or policies before us. We suppose that they obligated the insurance company to assume and pay any liability which the carrier might have to shippers such as the plaintiffs. Whether the plaintiffs could, as third party beneficiaries or otherwise, have sued the insurance company if it had not paid them, we do not know. Whether, having paid the plaintiffs, though, we assume, not contractually bound to pay them, the insurance company by subrogation or other doctrine would have rights against the plaintiffs to any recovery which they might obtain from the Government, we do not know. The briefs of the parties do not discuss the question.

In the American Tobacco Company case, supra, the Court held that the fact that the plaintiff there had been reimbursed by an insurance company for the lost stamps did not nullify the plaintiff's right to demand redemption of the stamps by the Government. In the instant case, likewise, the plaintiffs, because they have been reimbursed by others for the value of the stamps, have not lost their rights to have the stamps redeemed. The writer of this opinion thinks that what they do with the money when and if they get it is really no concern of the Government. He would therefore treat the statement in the petitions that the suits are for the use of the insurance company as surplusage, and, on that ground, deny the Government's motions to dismiss the petitions. The


128 C. Cls.

other members of the court have a somewhat different view

which is expressed in a separate opinion.

The Government's motions are dismissed.

It is so ordered.

WHITAKER, Judge, concurring:

I agree the defendant's motion to dismiss should be denied. I do not think, however, we should treat as surplusage the allegation in the petitions that the suits are for the use of the insurance company.

If plaintiffs recover from the Government, they would be obliged to pay over the money to the insurance company, since that company has already paid them. If they should refuse to do so, they undoubtedly could be forced to do so by suit in the appropriate court. This being true, why should not any judgment we may render in plaintiffs' favor recite that it is for the use of the insurance company? We have jurisdiction to do so under the Contract Settlement Act. That jurisdiction has been invoked and should be exercised.

LITTLETON, Judge, and JONES, Chief Judge, concur in this opinion.


[No. 49364. Decided May 4, 1954]
On the Proofs

Government contract; breach of contract by withholding information.-Plaintiff, a partnership, in 1942 entered into a contract with the Federal Works Agency, for the construction of a defense public works sewer project in Baltimore. In the instant case plaintiff sues for excess costs incurred by reason of encountering quantities of underground water in an amount which it says it had no reason to expect and concerning which information was withheld by the defendant. On the evidence and under the terms and provisions of the contract, it is held that plaintiff is entitled to recover.

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