No. 2123. | Somerville Railroad Company, by John Kean, was held to be the draft of Adams & Co., and not the personal draft of the persons who signed it as agents in this case. In Garton v. Union City Nat. Bank, 34 Mich. 279, it was said: "A promissory note made pay. able to C. T. Allen, cashier, or order, indicates that it was made to him not as an individual, but as a bank officer, and that it was a contract with the bank; and in a suit upon it by the bank no indorsement by such cashier is necessary to the admission of the note in evidence.' To the same effect see Mott v. Hicks, 1 Cow. 513, and cases there cited; Bank of Genesee v. Patchin Bank, 19 N. Y. 312, and authorities cited in Story on Agency, § 154. In 1 Parsons on Notes and Bills, 92, it is said: "If the agent sign the note with his own name alone, and there is nothing on the face of the note to show that he was acting as agent, he will be personally liable on the note, and the principal will not be liable. And although it could be proved that the agency was disclosed to the payee when the note was made, and that it was the understanding of all parties that the principal, and not the agent, should be held, this will not generally be sufficient, either to discharge the agent or to render the principal liable on the note," citing Stackpole v. Arnold, 11 Mass. 27. That case was an action against the defendant as maker of three promissory notes. The notes were signed by another per[604] son in his own name, and there was nothing on the face of them to indicate any agency, or that the defendant had any connection with them. At the trial the person who signed the notes testified that they were given for premiums upon policies of insurance procured by him in the office kept by the plaintiff, at the request and for the use of the defendant, on property belonging to him, and that the witness acted merely as the factor of the defendant, and intended to bind him by the premium notes. The judge instructed the jury that "if they believed the notes to have been made and signed for and in behalf of the defendant, the verdict ought to be for the plaintiff." It was held that the evidence was improperly admitted, and the instruction was erroneous. The converse of the rule laid down in the last two cases cited would seem to be identical with that contended for on behalf of the defendant in error. On the other hand, authorities to sustain the view of the case contended for on behalf of the plaintiffs in error are not wanting, either in number or in pertinence. In Kean v. Davis, 21 N. J. L. 683, a bill of exchange of the following purport, addressed to William Thomson, Esq., Somerville, New Jersey, and indorsed "The Elizabethtown and president:" "$500.00. ELIZABETHTOWN, Sept., 1841. "Six months after date, please pay to the order of the Elizabethtown and Somerville Railroad Company, five hundred dollars, value received, and charge as ordered. "Your obed't serv't, JOHN KEAN, "President Elizabethtown and Somerville R. R. Co." was held to be ambiguous on its face, not clearly the railroad company was the drawer, and proof showing whether John Kean individually or "not to aid in the construction of the instruwas admitted, in the language of the court, ment, but to prove whose instrument it is." To the same effect see Chadsey v. McCreery, 27 Ill. 253; Vater v. Lewis, 36 Ind. 288; Hood v. Hallenbeck, 7 Hun, 362. S. 5 Wheat. 326 [5:100], is also claimed to be Mechanics Bank v. Bank of Columbia, 18 U. [605] an authority in favor of the position taken by the plaintiffs in error. This was an action of assumpsit brought by the Bank of Columbia against the Mechanics' Bank of Alexandria on the following check: It was contended by the defendants that the check on its face was the individual check of Paton, and that evidence could not be received to show that it was in fact the check of the bank, and signed by Paton as cashier. On the other hand, the plaintiffs contended that the check upon its face did not purport to be the private check of Paton, but the check of the bank, drawn by him as cashier, and that the presumption was, that it was an official act. The court, however, decided that the check was ambiguous upon its face, that the marks indicating it to be the check of the bank predominated, and that the only ground upon which it could be contended that the check was the private check of Paton was that it had not below his name the initials for cashier. It was accordingly held that in such case testimony was admissible to explain the ambiguity and establish who was in fact the drawer of the check. The court say: "But the fact that this appeared on its face to be a private check is by no means to be conceded. On the contrary, the appearance of the corporate name of the institution on the face of the paper at once leads to the belief that it is a corporate and not an individual transaction, to which must be added the circumstances that the cashier is the drawer and the teller the payee, and the form of ordinary checks deviated from by the substitution of to order for to bearer. The evidence, therefore, on the face of the bill, predominates in favor of its being a bank transaction. Applying, then, the plaintiff's own principle to the case, and the restriction as to the production of parol or extrinsic evidence [606 could have been only applicable to himself. But The reasoning of the court in this last case error. (See S. C. Reporter's ed. 607-614.) protest-Acting Secretary. 1. Charges for transportation of goods imported In Daniel on Negotiable Instruments, § 415, Many more authorities are cited and might be dwelt upon almost ad infinitum. A discussion 3. But when there has been a long acquiescence in ties have been finally liquidated, and not from a 5. The acknowledgment of the Acting Secretary, [No. 267.] Argued April 27, 1888. Decided May 14, 1888. of all of them would greatly protract this IN ERROR to the Circuit Court of the United opinion, and would subserve no beneficial result. In all this vast conflict-we had almost [([607] said anarchy-of the authorities bearing on the question under consideration, it is not easy to lay down any general rule on the subject which would be in harmony with all of them. It seems to us, however, that the case of Hitchcock v. buchanan, supra, controls the case at bar. Both involve the same principles, and the decision in this, to be consistent with that of the former, must sustain the contention of the defendant in error. Neither do we think that the case of Mechanics Bank v. Bank of Columbia, supra, when considered in the light of the facts upon which it is based, in anywise conflicts with this conclusion. We conclude therefore, that the notes involved in this controversy, upon their face, are the notes of the corporation. In the language of the court below, they were "drawn by, payable to, and indorsed by, the corporation." There is no ambiguity in the indorsement, but, on the contrary, such indorsement is, in terms, that of the Peninsular Cigar Company. This being true, it follows that the court below was right in excluding from the jury the evidence offered to explain away and modify the terms of such indorsement. White v. Miners Nat. Bank, 102 U. S. 658 [26:250]; Martin v. States for the Southern District of New York, to review a judgment in favor of plaintiffs, in an action to recover back an excess of duties exacted. Affirmed. The facts are stated in the opinion. Mr. G. A. Jenks, Solicitor-Gen., for plaintiff in error. (No counsel appeared for defendants in er ror.) [60% Mr. Justice Field delivered the opinion of [608] the court: The plaintiffs below, the defendants in error here, in March, 1882, imported into the United States at the Port of New York 5,179 packages of steel rods from Mulheim, in Germany. They were shipped at the Port of Antwerp, in Belgium, to which place they were brought by rail from Mulheim, where they were made. Antwerp is distant from the frontier of Germany between forty and fifty miles, and from Mulheim two hundred miles. The appraisers added to the invoice price of the articles at Mulheim eleven marks per ton to make the dutiable value of the articles, and four marks per ton for the charges incurred in their transportation to Antwerp. Upon their appraised value, including these charges, the defendant, who was at the time Collector of the Port of New York, on the 5th of May, 1882, ascer [609] [610] tained and liquidated the duties. Subsequent- The question of importance presented is "TREASURY DEPARTMENT, OFFICE OF THE SECRETARY, Washington, D. C., August 14, 1882. "Collector of Customs, New York. "Sir: The department is in receipt of your letter of the 27th ultimo, submitting the appeal (1996,2050 H) of Messrs. Downing, Sheldon & Co., from your assessment of duty on additions made by the appraiser to the invoice and entered value of certain steel wire rods imported by them per Hermann, March 9, 1882. "The appraiser reports that an addition was made by him for charges under the depart ment's decision of July 20, 1880 (S. S. H 4617), for the reason that the invoice did not state that the price of the merchandise was 'free on board,' and that an addition for value was also made by him to make the usual mar ket value of the merchandise. "Your assessment of duty thereon is hereby affirmed. "Very Respectfully, H. F. FRENCH, "TREASURY DEPARTMENT, OFFICE OF SECRETARY, rates, but in no case less than two and a half Stat. at L. 189, provides "that wherever any Washington, D. C., August 12, 1882. "Messrs. DOWNING, SHELDON & Co. (care of Kausche & Downing, P. O. box 3550, N. Y.) "Gentlemen: This department is in receipt of your appeal (No. 2050 H), dated May 25, 1882, from the decision of the Collector of the Port of New York, assessing duty on certain merchandise, imported per Hermann, March 9, 1882. "In reply, you are informed that the case "Respectfully, H. F. FRENCH, The decision of the Secretary was made Au- In the execution of these statutes the Treasury Department has heretofore uniformly construed them to apply, so far as inland transportation is concerned, only to such transportation where the place of the growth, production, or manufacture of the article is in the same country as the port from which the vessel sails on which the shipment is made, and not where such transportation is through other countries to reach a place of shipment. Thus, in a decision rendered September 12, 1882, where goods were forwarded from Brodenbach, in Austria, to Hamburg, transshipped to Hull, and [611] [612] then placed on the import vessel, the journey | ernment counsel we do not think tenable. The "This claim seems to be well founded, in view of the long established practice in such cases, and of articles 434-444 of the Regulations of 1874, which provide in substance that in the case of merchandise imported from an interior country through the ports of another country, or from the country of its production, manufacture, or procurement via another country, no charges shall be added for transportation accruing after the departure of the merchandise from the country of production, if the collector shall be satisfied that the merchandise was exported from such country with a bona fide intention of having it transported to the United States." A decision by the department, made some years before, also illustrates the construction when the two places, that of production and that of shipment, though separated from each other by water, belong to the same country. The charges for railroad and steamboat transportation of goods from Dundee, in Scotland, to Liverpool, in England, were added to the invoice price to make the dutiable value of the articles imported into this country. The importers objected to these charges, and cited article 441 of the Regulations of 1874, referred to in the above decision, in support of their claim; but the Treasury Department held that the regulation was applicable only where the goods were transported to some port of another country from the country of production for shipment to the United States, by a practically continuous voyage, and was not applicable to shipments from Scotland through England, which are, to all intents and purposes, the same country. This construction of the Treasury Depart[613] ment we think a sound one. It places articles which are the growth, product, or manufacture of countries whose ports of easy shipment are found in other countries through which the goods must be carried, on a basis of equality with the products of those countries which have convenient ports of shipment. To preserve this equality the shippers are not obliged to confine their shipments to their own ports, when ports of other countries would be equally or more convenient to them. This construction of the department has been followed for many years, without any attempt of Congress to change it, and without any attempt, as far as we are advised, of any other department of the government to question its correctness, except in the present instance. The regulation of a department of the government is not of course to control the construction of an Act of Con gress when its meaning is plain. But whe- The technical objections taken by the gov FANNIE B. ALLEN, Appt., v. HENRY F. GILLETTE. Trustee, purchase by-executors and administra 1. A trustee or person acting in a fiduciary char- 2. This rule applies to executors and administrators, who are not permitted to derive a personal benefit from the manner in which they transact the business or manage the assets of the estates intrusted to them; but whatever advantage is derived by them from a purchase at an undervalue is for the common benefit of the estate. 3. A trustee may purchase the trust property at a judicial sale brought about by a third party, which he could not have had control. This is the which he has taken no part in procuring, and over rule in Texas. 4. The disposition which a single creditor may lands of the estate, a sale under the mortgage does to the transaction. Argued May 3, 1888. Decided May 14, 1888. APPEAL from a decree of the Circuit Court The facts are stated by the court. Messrs. J. T. Brady and H. F. Ring, for appellant: The relationship between Mrs. Allen and Gillette was that of trustee and cestui que trust. 2 Pom. Eq. 482; Ex parte Lacey, 6 Ves. Jr. 627. [614] [589] 1590] Erskine v. De La Baum, 3 Tex. 417; Howards v. Davis, 6 Tex. 174; Marsh v. Hubbard, 50 Tex. 203; Connolly v. Hammond, 51 Tex. 635; Michoud v. Girod, 45 U. S. 4 How. 560 (11:1101); Stephen v. Beall, 89 U. S. 22 Wall. 339 (22:788); Wormley v. Wormley, 21 U. S. 8 Wheat. 441 (5: | 656). The trustee may not purchase the trust prop-ing said will and filing inventory and appraise- A trustee buying a debt or incumbrance against the estate held by him in trust can only be allowed the amount actually paid therefor, with interest. Lewin, Law of Trust, 289; Darcy v. Hall, 1 Vern. 49; Van Epps v. Van Epps, 9 Paige, 237; Torrey v. Bank of Orleans, 9 Paige, 649; Dickinson v. Codwise, 1 Sandf. Ch. 214; Settembre v. Putnam, 30 Cal. 490; Hall v. Van Ness, 49 Pa. 457; Campbell v. Campbell, 21 Mich. 438; King v. Cushman 41 Ill. 31; Harrold v. Lane, 53 Pa. 269; Heath v. Page, 63 Pa. 108; Holmes v. Campbell, 10 Minn. 401. Mr. T. N. Waul, for appellee: This case is to be decided by the lex loci rei sitæ. Hinde v. Vattier, 30 U. S. 5 Pet. 401 (8:170); Van Ness v. Pacard, 27 U. S. 2 Pet. 137 (7:374); Wheaton v. Peters, 33 U. S. 8 Pet. 591 (8:1055); Kendall v. U. S. 37 U. S. 12 Pet. 524 (9:1181); Pennsylvania v. Wheeling & B. Bridge Co. 54 U. S. 13 How. 518 (14:249); Neves v. Scott, Id. 272 (14:142); U. S. v. Eckford, 73 U. S. 6 Wall. 484 (18:920); Brinev. Hartford F. Ins. Co. 96 U. S. 627 (24:858); Orvis v. Powell, 98 U. S. 177 (25:238). The complainant alleges, at length, that, being poor and in needy circumstances, arising [591] from the failure and refusal of said defendant to settle up the said estate so as to let her have her portion thereof, or to render it available to relieve her pressing necessities, she was induced by the advice of said defendant to borrow said money from the bank and to execute the said note and deed of trust, which she would not have done but for defendant's promise to make her said interest in the estate available, so as to pay off said note, and thus prevent the sale under the deed of trust. She further alleges that, by withholding from her information as to the condition and value of the estate and making no reports to the court, the defendant obtained an undue advantage over her, and was thereby enabled to bid in her interest for much less than it was worth at the time of the sale. After alleging other circumstances of wrong2 Bish. Mar. Wom. § 399; Mitchell v. Mitch-ful conduct and dereliction of duty, she states ell, 35 Miss. 108; Mobley v. Leophart, 47 Ala. 259; Bolling v. Mock, 35 Ala. 727; O'Brien v. Foreman, 46 Cal. 80; Cravens v. Booth, 8 Tex. 248. The acts of the husband were those of the wife's trustee, fixed by law with the control of the separate property. While the law extends its protection to the rights of a married woman, it does not permit her to act fraudulently or inequitably to the injury of others. Chubb v. Johnson, 11 Tex. 469; Allen v. Urquhart, 19 Tex. 480; Berry v. Donley, 26 Tex. 737; Baily v. Trammell, 27 Tex. 328; Fitzgerald v. Turner, 43 Tex. 79; Ryan v. Maxey, Id. 192. Mr. Justice Lamar delivered the opinion of the court: This is a suit in equity in the Circuit Court By the terms of the will, Henry F. Gillette, that, owing to enforced absence from Texas, The bill closes with the prayer that she be The defendant denies the allegation that the note and mortgage were executed by said complainant at his (defendant's) suggestion, by his advice, or with his approval, and alleges, in specific detail, that each and all the statements in the bill as to his (defendant's) conversations, actions or privity with said complainant and her husband, or said company, in any manner leading to or connected with said loan, note, and trust deed, are wholly untrue and unfounded; and avers that he was entirely igno rant of the borrowing of the said money and of the execution of said note and deed of trust, [592] |