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Courts.-- Jurisdiction of Court of Claims is limited to cases arisIng out of contracts, express or implied, to which United States is party in same sense in which an individual might be, and to which ordinary principles of contracts must and should apply, p. 45.

Cited in United States v. Smith, 94 U. S. 217, 24 L. 115, holding the United States liable for damage to contractor caused by improper suspension of work.

Contracts.- Impossibility which releases one from obligation to perform his contract must be a real impossibility and not a mere inconvenience, p. 46.

Approved in Clark v. National Benefit & Casualty Co., 67 Fed. 225, insurance company delaying to secure license for its general agent in another State, held liable only for loss caused by lack of diligence.

Contracts.- Mere assertion that party will be unable, or will refuse to perform his contract, is not sufficient to terminate it; it must be distinct and unequivocal absolute refusal to perform, treated and acted on as such by promisee, p. 48.

Cited and rule approved in Dingley v. Oler, 117 U. S. 503, 29 L. 988, 6 S. Ct. 854, holding, where contract gave option to deliver ice at any time during shipping season, refusal to deliver at a certain time was not a refusal to perform contract; Foss-Schneider Brewing Co. v. Bullock, 59 Fed. 88, 16 U. S. App. 311, right of action accrued not at time of attempted cancellation of contract, but at time of delivery of goods in accordance therewith; Hanson v. Slaven, 98 Cal. 382, 33 Pac. 267, where refusal to deliver stock in accordance with contract was not shown, party not excused from tendering purchase money; Lake Shore & M. S. Ry. v. Richards, 152 Ill. 95, 38 N. E. 782, 30 L. R. A. 57, and n., instructions given were within the above rule; Dobbins v. Edmonds, 18 Mo. App. 320, It is unnecessary to show actual performance where tender of it was declined; Smith v. Keith, 36 Mo. App. 583, rejection of two loads of hay, which was of the stipulated quality, justified plaintiff In rescinding entire contract and suing thereon; Kilgore v. Northwestern, etc., Assn., 90 Tex. 142, 143, 37 S. W. 600, declaration of intention to abandon contract at future date cannot be treated as an abandonment, where party continues actively engaged in its performance; Steinlein v. Blaisdell (Tex. Civ. App.), 44 S. W. 203, letter called forth by shipment under another contract, not expressing an abandonment of contract involved, did not authorize a rescission of such contract. Cited in Stokes v. Baars, 18 Fla. 661, arguendo.

United States. One under contract to deliver horses to government, upon adoption of regulation for inspection of horses bought and the branding of those unfit, elected to abandon his contract,

without attempting any performance, held not entitled to damages, pp. 49-50.

Cited and holding affirmed in United States v. Spicer, 15 Wall. 51, under similar facts; Dingley v. Oler, 117 U. S. 503, 29 L. 988, 6 8. Ct. 854, holding, where contract gave option to deliver ice at any time during shipping season, refusal to deliver at a certain time was not a final refusal to perform contract; Foss-Schneider Brewing Co. v. Bullock, 59 Fed. 88, 16 U. S. App. 311, right of action accrued not at time of attempted cancellation of contract, but at time of delivery of goods in accordance with contract; Hanson v. Slaven, 98 Cal. 382, 33 Pac 267, where refusal to deliver stock in accordance with contract was not shown, party not excused from tendering purchase money; Stanford v. McGill, 6 N. Dak. 565, 72 N. W. 949, 38 L. R. A. 770, arguendo, repudiation of contract before time for performance does not constitute a breach. See 59 Am. St. Rep. 281, 291, note.

Distinguished in Edward Hines Lumber Co. v. Alley, 73 Fed. 607, 43 U. S. App. 169, holding, where performance was demanded at a time when party had a right to demand it, refusal to perform was a breach of agreement; American Strawboard Co. v. Haldeman Paper Co., 83 Fed. 623, 54 U. S. App. 428, recovery for breach of covenant to convey cannot be had where party persisted in demanding a deed without restriction provided in option; Marks v. Van Eeghen, 85 Fed. 854, 57 U. S. App. 151, party renouncing executory contract without cause, before time for performing it has elapsed, authorizes other party to treat it as terminated.

15 Wall. 51, 21 L. 107, UNITED STATES ▼. SPICER.

Similar to and decided with Smoot's case, 15 Wall. 36, 21 L. 107.
No citations.

15 Wall. 51-57, 21 L. 41, KEARNEY v. DENN.

Appeal and error.- Where court overruled motion to dismiss for want of jurisdiction, ground of ruling not appearing, Supreme Court cannot take cognizance of an exception noted on the record; bill of exceptions, setting forth what was proved and decision of court, should have been taken, p. 56.

Affirmed in England v. Gebhardt, 112 U. S. 505, 28 L. 812, 5 S. Ct. 288, holding only errors apparent on face of record can be reviewed on writ of error; Sessions v. Gould, 63 Fed. 1002 26 U. S. App. 368, order imposing fine for contempt reviewable only on writ of error. Judgment declaring a son illegitimate, after issue as to whether father was ever lawfully married to admitted mother, held inadmissible to show illegitimacy of his sisters by same parents, not parties to the original proceeding, p. 57.

ANN

Approved in Morin v. St. Paul, etc., Ry., 33 Minn. 180, 22 N. W. 253, holding judgment of foreign Probate Court not binding against stranger to proceedings as proof of death or of inheritance of lands.

15 Wall. 58-62, 21 L. 61, MADDOX v. UNITED STATES.

War.- Under statutes, treasury regulations and executive orders regulating the purchase of products of States in rebellion, United States purchasing agents had no power to negotiate with parties not owning or controlling such products, p. 62.

Afirmed in Snell v. Dwight, 120 Mass. 13, dismissing bill in equity, for an account of profits, by party to contract for illegal trading; Lacy v. Sugarman, 12 Heisk. 362, bill of exchange drawn by citizen of a Confederate State, upon a like citizen residing within Federal lines, is void except in hands of bona fide holder. War.- Object of statutes, regulations and executive orders regulating purchase of products of States in rebellion was to encourage insurgents to bring their products to people of loyal States, p. 62.

15 Wall. 63-67, 21 L. 45, GRAY v. DARLINGTON.

Internal revenue.— Advance in val of property during a series of years cannot be considered gains, profits or income of any one particular year, therefore advance on bonds held for several years was not taxable, under act of 1867, as gains, profits or income" of year in which sale was made, pp. 65, 66.

No citations.

66

15 Wall. 67-68, 21 L. 82, TARVER v. KEACH.

Supreme Court cannot review State court decision, holding contract void upon general principles of public policy, p. 68.

Cited and holding affirmed in Rockhold v. Rockhold, 92 U. S. 130, 23 L 507, holding decision by State court that trustee cannot be held liable for loss of trust fund not occasioned by laches or bad faith does not involve a Federal question and cannot be reviewed; New York Life Ins. Co. v. Hendren, 92 U. S. 287, 23 L. 710, where decision of State court was upon principles of general law alone; Bank v. McVeigh, 98 U. S. 333, 25 L. 111, decision involving general principles of commercial law does not present a Federal question; Drugger v. Bocock, 104 U. S. 601, 26 L. 848, dismissing appeal where appellant did not show that a Federal question was involved; San Francisco v. Scott, 111 U. S. 769, 28 L. 593, 4 S. Ct. 688, whether, after conquest of California, an alcalde could make a valid grant of pueblo lands, not a Federal question; Chicago & Alton R. R. v. Wiggins Ferry Co., 119 U. S. 624, 30 L. 523, 7 S. Ct. 403, dismissing appeal from decision of State court upon the validity of a contract; New Orleans Water-Works v. Louisiana Sugar Co.,

125 U. S. 34, 31 L. 613, 8 S. Ct. 750, Supreme Court has no juris diction on the ground that the obligation of a contract has been im. paired, unless some legislative act of State is upheld by judgment appealed from; Winona & St. Peter R. R. v. Plainview, 143 U. S. 393, 36 L. 200, 12 S. Ct. 538, dismissing appeal where objection that obligation of contract was violated was raised for the first time in the United States Supreme Court. Cited in Saginaw GasLight Co. v. Saginaw, 28 Fed. 533, arguendo, where corporation holds conflicting grants from municipality a Federal case is presented.

15 Wall. 68-75, 21 L. 46, CHENEY ▼. VAN ARSDALE.

Internal revenue.- Castings made for thimble-skeins and pipe boxes were taxable under act of 1866, taxing iron castings, pp 71-75.

No citations.

15 Wall. 75-77, 21 L. 63. ERSKINE v. VAN ARSDALE.

Internal revenue. Dy act or March 2, 1867, thimble-skeins and pipe boxes of iron were expressly exempted from taxation, and taxes could not be assessed upon them as castings, p. 76.

Internal revenue.- Taxes illegally assessed and paid may always be recovered back, if collector understands from payer that taxes are regarded as illegal and that suit will be instituted for their recovery, p. 77.

Cited and relied on in Magnolia v. Sharman, 46 Ark. 363, holding illegal tax paid to corporation, under threats and compulsion, may be recovered; Shoup v. Willis, 2 Idaho, 111, 6 Pac. 125, complaint alleging written notification that taxes were claimed to be illegal and void, and that suit would be commenced for their recovery, sufficient to support judgment; Winzer v. Burlington, 68 Iowa, 283, 27 N. W. 243, tax levied on property not liable to taxation, and paid under protest, may be recovered; Lyon v. Receiver of Taxes, 52 Mich. 276, 17 N. W. 840, personal property taxes paid, under protest, to avoid seizure of goods, may be recovered in suit against collecting officer; Vicksburg v. Butler, 56 Miss. 74, illegal tax paid, under protest, because of officer's threat to shut up taxpayer's shop, may be recovered; Turner v. Althaus, 6 Neb. 67, action at law is the proper remedy for the recovery of taxes illegally collected; North Carolina R. R. v. Commissioners, 77 N. C. 5, plaintiffs entitled to recover taxes paid, under protest, upon exempt property; Stephan v. Daniels, 27 Ohio St. 540, payment of illegal taxes in order to prevent sale of property was not voluntary, and taxpayer could recover; Dunnell Mfg. Co. v. Newell, 15 R. I. 238, 2 Atl. 770, corporation could recover tax, illegally assessed, paid under protest;

ANN

Raleigh v. Salt Lake City, 17 Utah, 135, 53 Pac. 975, taxes assessed under an invalid ordinance, and paid under protest and compulsion, may be recovered in action for money had and received; W. Va. Transp. Co. v. Sweetzer, 25 W. Va. 446, in suit by railroad for freight charges and money advanced, defendant might set off freight paid in excess of legal charges; Moller v. Merritt, 24 Blatchf. 216, 29 Fed. 682, arguendo, objection that suit could be brought only after decision by the secretary of the treasury, of no avail; Raisler v. Mayor, etc., 66 Ala. 198, where payment was voluntary there could be no recovery; Board of Commissioners v. Searight Cattle Co.. 3 Wyo. 795, 799, 31 Pac. 275, 277, arguendo. See 51 Am. Rep. 823, note.

Distinguished in Railroad Co. v. Commissioners, 98 U. S. 544, 25 L. 197, holding, in the absence of an enabling statute, taxes illegally assessed might not be recovered back; Barney v. Rickard, 157 U. S. 364, 39 L. 734, 15 S. Ct. 647, where protest was made after payiment of duties; Hopkins v. Butte, 16 Mont. 109, 40 Pac. 173, action of assumpsit will not lie to recover alleged illegal tax paid before assessment of penalty for non-payment, although written protest was filed; Van Buren v. Downing. 41 Wis. 130, where person paying illegal license did not deny his liability nor inform defendant that he would bring suit to recover amount paid, no action lies for its recovery; Parcher v. Marathon County, 52 Wis. 390, 391, 38 Am. Rep. 746, 747, 9 N. W. 24, where officer manifests intention to enforce collection of illegal tax by seizure and sale of property, payment is not voluntary and amount may be recovered.

Internal revenue.- Where illegal tax has been collected, citizen who has paid it is entitled to interest in event of recovery, from time of illegal exaction, p. 77.

Cited and rule affirmed and extended in Schell v. Cochran, 107 U. S. 626, 628, 27 L. 544, 545, 2 S. Ct. 828, 830, holding court affirming judgment recovered against collector for moneys illegally exacted will allow interest on original judgment; Nashua, etc., R. R. v. Boston, etc., R. R., 61 Fed. 248, 21 U. S. App. 50, allowing interest, in a suit in equity, from date of filing bill; Richmond & I. Const. Co. v. Richmond, N. I. & B. R. R., 68 Fed. 115, 31 U. S. App. 704, 34 L. R. A. 631, sub-contractors entitled to interest from completion of the work; Jourolmon v. Ewing, 80 Fed. 608, 47 U. S. App. 679, enforcing agreement for payment of interest from date of contract of sale, although a good title was not given until later. Distinguished in Redfield v. Ystalyfera Iron Co., 110 U. S. 176, 28 L. 110, 3 S. Ct. 572, holding, where plaintiff unreasonably delayed the prosecution of his claim, interest ran only from entry of judgment; Redfield v. Bartels, 139 U. S. 701, 35 L. 313, 11 S. Ct. 686, to the same point; White v. Arthur, 20 Blatchf. 250. 10 Fed. 90. neither government nor collector is liable for interest accruing after judgment; Commissioners v. Buckner, 48 Fed. 540, 542, where taxes VOL. VII 54