United States v. Hagan & Cushing Co.

Judgment was entered in favor of appellee on a directed verdict in an action brought by appellant to recover alleged *850 •overpayments of prices stipulated in contracts between the parties.

The Agricultural Adjustment Act (Act •of May 12, 1933, Ch. 25, 48 Stat. 31 , 7 U.S. C.A. § 601 et seq.) imposed a processing tax upon pork and pork products effective November 5, 1933. Appellee, by twelve contracts entered into with appellant between April 22, 1935 and November 20, 1935, agreed to furnish certain supplies, including pork and pork products, to agencies of the United States. Each of the contracts contained the following provisions:

None of the contracts contained a provision to the effect that appellee would pay appellant any amount in the event that the processing taxes were held unconstitutional. The prices specified in the contracts were composite and contained no segregation as to what they included.

Appellee did not pay the processing taxes imposed by the Agricultural Adjustment Act for the month of April, 1935, or for any subsequent month. On June 13, 1939, this action against appellee was commenced to recover an amount equal to the processing taxes which the…

(dissenting).

The action is not on express contract but is for money had and received. It is elementary that in such actions, as in all those in general assumpsit, equitable principles govern. The action will lie upon a promise implied in law where necessary to prevent one person from being inequitably enriched at the expense of another. 1 Such, in general, I understand to be the theory of this suit.

The complaint alleges that between April 22, 1935 and November 20, 1935 defendant entered into contracts with the United States in which it undertook to deliver to governmental agencies pork products at prices fixed by bids submitted by defendant and accepted by the government. Each contract, the complaint avers, included the following provision: “Prices bid herein include any federal tax heretofore imposed by the Congress which is applicable to the material on this bid.”

It is alleged that, prior to the date set for opening the bids, the rates of processing tax imposed upon the products had been fixed by the Secretary of Agriculture under the supposed authority of the Agricultural Adjustment Act of May 12, 1933. Defendant delivered the supplies pursuant to the contracts and…

I concur in the judgment of affirmance, but on a different ground from that stated in the main opinion. An unconstitutional statute enacted by Congress does not impose a federal tax. The provision in the contract quoted in the main opinion that “prices bid herein include any Federal Tax heretofore imposed by Congress which is applicable to the materials on this bid” does not re■quire the contractor to pay a purported tax imposed by a statute which is void because unconstitutional.

There was no allegation nor evidence in the record that the appellee agreed to pay the unconstitutional processing tax and if it be conceded that a specific agreement to pay a specific tax whether constitutional or unconstitutional would justify recovery we have no such case before us.