Opinion of the Court.

the practice, pleadings and forms and modes of proceeding in this case, in regard to the complaint and the answer, were required to conform, as near as may be, to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the State of New York. By § 481 of the New York Code of Civil Procedure, it is required that the complaint shall contain "a plain and concise statement of the facts constituting each cause of action." Section 500 requires that the answer shall contain "a general or specific denial of each material allegation of the complaint controverted by the defendant, or of any knowledge or information thereof sufficient to form a belief." By § 522, "each material allegation of the complaint, not controverted by the answer," "must, for the purposes of the action, be taken as true."

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The allegation of the complaint in this case is, that the plaintiff "duly made and filed due and timely protest in writing," and "duly appealed to the Secretary of the Treasury," and "that ninety days have not elapsed since the decision of the Secretary of the Treasury on the aforesaid appeal.” As none of these allegations were denied in the manner required by § 500 of the code, they were, by § 522, to be taken as true, and no issue was joined upon any one of them. This is the ruling in regard to these provisions by the Court of Appeals of the State of New York. In Lorillard v. Clyde, 86 N. Y. 384, the complaint alleged that, in pursuance of a certain agreement, a corporation "was duly organized under the laws of this State." It was contended, on a demurrer to the complaint, that the agreement was illegal, because it provided that the parties thereto, consisting of five persons only, should form a corporation, whereas the statute contemplated that at least seven persons should unite in order to form a corporation. But the court held that the allegation that a corporation was “duly organized under the laws of this State," pursuant to the agreement, imported that the requisite number of persons united for that purpose; that it must be assumed that the corporation was regularly organized; and that it was unnecessary for the plaintiff to show in his complaint the precise steps taken to

Opinion of the Court.

accomplish that result. The word "duly" means, in a proper way, or regularly, or according to law. See, also, Tuttle v. The People, 36 N. Y. 431, 436, and cases there cited; Fryatt v. Lindo, 3 Edw. Ch. 239; The People v. Walker, 23 Barb. 304; The People v. Mayor, 28 Barb. 240; Burns v. The People, 59 Barb. 531; Gibson v. The People, 5 Hun, 542.

The plaintiff claimed, by his protest and at the trial, that the articles in question were liable to a duty of only twenty per centum ad valorem, under the provision of Schedule C of 2502 of the Revised Statutes, as amended by & 6 of the act of March 3, 1883, c. 121, 22 Stat. 501, which imposes a duty of 20 per centum ad valorem on "mineral substances in a crude state and metals unwrought, not specially enumerated or provided for in this act." The collector had imposed a duty of 45 per centum ad valorem on the articles, under the following provision of the same Schedule C, 22 Stat. 500: "Steel, not specially enumerated or provided for in this act, forty-five per centum ad valorem: Provided, That all metal produced from iron or its ores, which is cast and malleable, of whatever description or form, without regard to the percentage of carbon contained therein, whether produced by cementation, or converted, cast, or made from iron or its ores, by the crucible, Bessemer, pneumatic, Thomas-Gilchrist, basic, Siemens-Marten, or open-hearth process, or by the equivalent of either, or by the combination of two or more of the processes, or their equivalents, or by any fusion or other process which produces from iron or its ores a metal either granular or fibrous in structure, which is cast and malleable, excepting what is known as malleable iron castings, shall be classed and denominated as steel."

At the close of the plaintiff's evidence, the defendant moved the court to direct a verdict for the defendant, on the further ground that the plaintiff had not shown facts sufficient to entitle him to recover. The motion was denied by the court, and the defendant excepted to the ruling. But, as the defendant did not then rest his case, but afterwards proceeded to introduce evidence, the exception fails. Accident Ins. Co. v. Crandal, 120 U. S. 527.

Opinion of the Court.

The plaintiff introduced evidence for the purpose of showing that the article in question fell under the denomination of "metal unwrought," not specially enumerated or provided for in the act; and the defendant introduced evidence to show the contrary. It appeared by the evidence of the plaintiff, that the crop end of a Bessemer steel rail, such as the article in question, was the imperfect end of a rail, which was cut off to bring the remainder down to a solid rail of regular length; that the end thus cut off was of the same texture and fabric with the rail which remained after such end was cut off, and was made in the same manner; and that the crop end so cut off was Bessemer steel. It also appeared that such ends, when imported, were sold as an article of merchandise in this country, and were sometimes remelted in furnaces; and that they were sometimes used, after importation, for manufacturing other articles by reheating them, without their being remelted, and had a value as a manufactured article, other than for the purpose of remelting.

At the close of the testimony on both sides, the defendant moved the court to direct a verdict for him, on the grounds, that the plaintiff had not produced sufficient evidence to make a case; that there was no evidence that the imported articles were unwrought metal; and that they were steel, which was specially provided for in the statute. The motion was denied by the court, and the defendant excepted to the ruling.

The court charged the jury that the only question was whether the article was wrought or unwrought metal; that the word "wrought" meant wrought into something suitable for use, and not merely wrought in some manner, by being manufactured or treated; that, if the article was a mere excess of material, left after the making of steel rails, it was not wrought metal, within the sense of the statute; that, if it was something left over in excess of the material, the jury were to return a verdict for the plaintiff; but if it was an article fit for use in itself, made at the same time with the making of the rail, they should return a verdict for the defendant. The defendant excepted to that pt of the charge which stated that the only question for the jury was whether the article

Syllabus.

was wrought or unwrought metal; and also to that part which stated that if the article was a mere excess of material in making steel rails, it was not wrought metal in the sense of the statute.

We are of opinion that the court erred in its disposition of the case, and its charge to the jury. The motion to direct a verdict for the defendant, on the ground that the article was not metal unwrought, not specially enumerated or provided for in the statute, but was steel, specially enumerated and provided for in the same statute, in a clause other than that regarding metals unwrought, ought to have been granted. The article fell within the definition of steel given in the statute. The testimony showed that it was metal produced from iron or its ores, by the Bessemer process, within the definition of the articles which the statute stated should "be classed and denominated as steel." It was none the less steel because it was an excess of material, as the result of making steel rails, cut off from the steel rail, and not suitable for use in itself, without being remelted or reheated. The charge of the court on this subject was subject to the exception and objection made to it.

It results from these views that

The judgment below must be reversed, and the case be remanded to the Circuit Court with a direction to grant a new trial.

BROWN v. SUTTON.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF WISCONSIN.

No. 97. Argued and submitted November 26, 1888. - Decided January 28, 1889.

On the whole proof in this case, some of which is referred to in the opinion of the court: Held,

(1) That the appellant's intestate intended that the property in dispute

should belong to the appellee, that he bought it for her, and that he promised her orally that he would make over the title to her

Opinion of the Court.

upon the consideration that she should take care of him during the remainder of his life, as she had done in the past;

(2) That there had been sufficient part performance of this parol contract

to take it out of the operation of the Statute of Frauds, in a court of equity, and to render it capable of being enforced by a decree for specific performance.

(3) That the appellee had been guilty of no laches by her delay in commencing this suit.

BILL IN EQUITY, to compel a specific performance of a parol contract to convey a tract of real estate in Wisconsin. Decree in complainant's favor, from which respondent appealed. The case is stated in the opinion.

Mr. Erastus F. Brown (with whom was Mr. Edgar K. Brown on the brief) for appellants.

Mr. Edwin Hurlbut and Mr. Winfield Smith, for appellee, ubmitted on their brief.

MR. JUSTICE MILLER delivered the opinion of the court.

The bill was brought by Sarah S. Sutton, the appellee, against Erastus F. Brown and Francis A. Kenyon, executors of the last will of John S. Kenyon, and was in the nature of a suit for specific performance of a contract and for the conveyance of the title to a certain house and grounds in the city of Oconomowoc, in Wisconsin. There was no written agreement on the subject, but the suit is based upon the idea of a verbal promise or agreement upon the part of John S. Kenyon in his lifetime that he would convey the property to Mrs. Sutton, the appellee, and that such part performance had been had in its execution as to bring the case within the exception made by that doctrine in the requirement of the Statute of Frauds that the sale of lands must be in writing.

The executors and trustees under the will filed their answer, denying the existence of any verbal promise at all, and also denying that it was so far performed as to justify a decree. The court, however, rendered a decree in favor of Mrs. Sutton, that she was entitled to the property, and that the defendants