Opinion
No. 5128.
May 8, 1934. Rehearing Denied June 6, 1934.
Appeal from the District Court of the United States for the Eastern District of Pennsylvania.
Action by the Belber Trunk Bag Company against the United States. Judgment for defendant ( 6 F. Supp. 938), and plaintiff appeals.
Affirmed.
Chase Morsey, of St. Louis, Mo., and Milton H. Belber, of Philadelphia, Pa., for appellant.
Thomas J. Curtin, Asst. U.S. Atty., and Charles D. McAvoy, U.S. Atty., both of Philadelphia, Pa., and E. Barrett Prettyman, General Counsel, Bureau of Internal Revenue, and D. Louis Bergeron, Sp. Atty., Bureau of Internal Revenue, both of Washington, D.C., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In the court below the taxpayer sought to recover taxes alleged to have been illegally collected because barred by the statute limitation. By stipulation, trial by jury was waived and the case tried by a judge. The decisive question was whether the taxpayer had been misled and deceived into signing the particular waiver in question, which was a second one. After hearing the proofs, the trial judge found: "The plaintiff's president, when he signed and sent the second waiver, knew that the period of limitation for the assessment of his 1918 tax had expired." This finding of the judge has the same effect as if made by jury, and is conclusive when, as here, it is sustained by evidence. So holding as to the waiver, it follows that the bond given for the payment of the tax was valid and enforceable. In view of the full and satisfactory discussion of the case in Judge Kirkpatrick's opinion, we avoid needless repetition and limit ourselves to affirming the judgment below.