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dJ .':"
'WHITE It·' al., ,/ .'} .,
:;'BAtRNEY',
CollectOr., v\\ ,;.'}'
?;.;
",ji
tCo£rcuit Court,' So
May \6,
;t.l!9!!I)
phrase, "goOds desorlpand speoiftc'tradecmeaning other ,and Its ,a,p.a but, If not suoh '. " c!O'JiJmerelal phrase, should reoelve itS meanIng in ordInary epeedh and oonversation. &·1Uift4l!illu,Nnms Ii' NOT,,,,COl\O[ERClIAi;pmu.sE.' ,:,: ' , While these worde,'lof eimllar descp::illtioQ.,"havElbeen :held , courft in Greenleaf 'v;G6oIJlich, 1()l.:tr.S.278,to meall."similarityinpt'Oduot, Itt , 'ad,aa.ptationito,use,,.' and 'notiD IaPPll'8raOC;S,or, In Proces,' BOf,,mIlOU,fQ,oture, "the, ' ), "hPwever ,whioh Is ,mlide .Qt, something, and "'h!onr Whlln made.' ijas c' oharaoteristlcs' "thl'ch' are apparent to ttre !lllnees: and In ." 88,. to sun, ilari,tYlOf, PI', dUO,tth, mil,t.lerl,al Of, Wli1,' ,11" aI>l'OlJuct,' 18, m,ad,e, and ita , ; ISPP$IH'Ilq,oEl when may, be tail:en, fntB C9nelaeratIQl1. By; tqis, phrase, ,. O'fBiiil.llar Dieail't oOwpbeedwb,o!ly or iIi part of , mehall', or goat'e'baiir, and liIIIsd: fOl' dreSs g()odS, Whlch'lI.lso,'as pleted fabrios, possess qualities of genlll'lI.\ iQ.,ppearanoe.l cmaraofe.r, llnd texture like unto, ornear1y oorresponding to,ar generally resembling,the q.ualitles which a. , : tilllfU'ie'b.!delalnea, or delaillllll,'1 or :baraga mualil1 'delaine& : 'tlon," Ifa cOlnmElrcial phrBse," with frOI:l1 ttlli 'lnel,\pil1g Sn
..
'In; determining wbetl1er'goods Bre goods of similar deS(lriptibntC>'delalnes, mere-delalnes, or deilline!'t under W,qvision .for" all deulns in 'bal'egll delaines, cotb'Po'lied wholly or In laineii; pal'Hlf'worsted,:wool\:Ploliair, 01' go8tl's hair; audon ilIods"ofisimilar descrlp, '10,,II,j, p-l"'inedJn, se,'Ptipn9 of 14, 1 , St. 548,) ',' al'l! tobe (a) 'J,'b,e, rule 'whioh 18 to 'U,lIed'ln determinmg' " :whether tlie former goods are elmilar'Ol' dissimilar to the latter; {bltlie standard of in Piffereat varlet¥l8 of goods wfth ",blOh the former are, to aM found similar dr disslmllart and (0) . ,'wbat,l&re th6;i()rmer goods whloh arEl'to be.eompared With that etal1dardt
SUItLA'B: DBs6iuPirIO:*-DBTEtunliiAortoN.' '
"
iJ lpartill'dlar
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'At 1l1f!.:eq;
" Action to
, ,
baek::dtities.
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',
efCGeQd:mg lA valueAO fer square yard, 'under the provision {or "allde1aines, cashmere delaines; muslin composed wholly.()l' 'in part of worsted i wool, mohair, or goat's hair, and all goods of similar description not ex1 ceediriginvalueAO' oents'pall contained in section 90Lthe ta.riff,acll of NlyJAi, 1862, (12 U. S. -St. 543,) aotAe;thaHll'ovisioD1·adutyof 2 per, sqtia:reyard was exacted:of the plaintiffs::by 88 ,collector of customs at that port; .iAgahisti thiJrolassificatidn! and, xaotionthe' claimirig that ,these goods were dutjableat6 percent. ridvciltrrem, instead of 2cerits per squalle!yard,.!lnder .the .provision "forj"manufp,ctUres not, otherwise provided,fot,composed,.of mixed maMriills 'in part o[,cotton,' si1kj wooli or worsted, '!hemp; jute,":Ol' ilax,"coritained in seption 13 of,theaforesaid tariff act, "ThiS; action was:btbughUi> recover claimeli to have been exacted. ", , "::' , J081epl&M' Deuel,Amum.,'W.Gri8t.D9ld,: andW.Wickham .Smith, ' for plaintiff8lf: Edwafti »itcheU, U. S. Atty., and TMmas Greenwood, Asato U. ,Atty., for deleudWnt., ',' Q : '.', , , ' "'" .'" :, ,
4'15 ,LACOM1Ul:;' J:', (ehxtrgiWJ jttry.) The particular provip,ion of statute with which we ti:reconcerned here, is found in the ninth section of tbeact of JI\Iy14, 1862, which provides for an additional duty of 2 cents per square yard "on !aU delaines, cashmeredelaines, muslin delaines,barege delaines, composed wholly or in part of worsted, wool, mohair, ar goat's hair, and, on all goods of similar description not ex:' ceeding'invalue :40 cents per square yard." The plaintiffs' goods coming into thiaport in ·regularcourse of business, the collector, through his appruising officers and examiners,'looked at them, and decided, not that they: were delainee of any of these namedvarietiee, but that they were goods of asimilardescriptionro one or the other of the kinds of delaines which '&116, epumerated in this and laid duty upon themacClordingly·. ' Ofitourse'the presumption with whleh we begin this case is that the collector's action, or the collector's determination, was correct; that, as a public officer, who examined the goods, through his subordinates, he reached a. correctconcluslon; and it is ro overthrow that conclusion that the plaintiffs come into court,--into the tribunal which the law allows them to seeir,-in order to correct what they claim to be a mistake of the q,ollectbr. The burden of proof, then, is upon the plaintiffs in this case to convince you, by a fair preponderance of proof, that their contention is a sound one, and that the:collector erred whenhefoulld that plaintiffs' goods were in fact similar to theSe delaines which are' enumerated in the statute. Now, in order to put the case to you in the way in which you can best handle it, it has been determined that a single question be put to you separately as to each kind Qf goods. Therefore, what will be given to you to takecinto the jury-room is this paper. with a question written on it, and that question you will answer in writing, and sign your names to the answers. Thisie the question which you will take with you: ..As to eacbV8riety of goods enumerated in the firstco!umn, answer' Yes' or ' No ':to this question: Were such goods of simHardllllcription to tlelaines, or to c8shml're delaines,c or to muslin delainea, or to barege delaines, composed wholly or in part of WOl'sted. wool, mohair, or goat's hair, as such varieties of delaines were known in the tralie and commerce of country in 1l:!ti2 and prior thereto?" . ,
Then follows an enumeration of names, such as "Alexandra Cloth," ..Alpacas," "Tartan Check,"" l!'ancy End," etc. As to each one separately yon are :to answer "Yes" or "No" to that question. The question which you are to answer as to these goods is whether they were. of similar description to the varieties of· delaines whioh I have named. That, you will see, implies three matters for your consideration: (1 ) The rule which you are to use in determining whether the one variety of goods is similar to the other variety; (2) the determination of the standard of comparisoIl,-tha.t.is,what are these different varieties of delaines with which the goods imported here were to ,be compared and found to besimilnr or dissimilar? and (3) what are the articles themselves which are'torbecompared with this standard? Firiltl,asto the rule to be. applied. The phraseology is ,"goods of similar descriptio/lto delaines,. or to cashmere delaines," etc.·enumerat-
476
·.L
vol. 43.
iug the several varieties. Now, the words "of similar descdption" con· stitute acolmuon and familiar phrase in the ordinary use of English words. Sometimes, however, the usage of trade gives to words of ordi· particular and technical trade meanings; and therefore, aLthough in a former case (Greenleaf v. Goodrich, 101 U. S. 278) it has been held by the supreme court thatthe phrase "of similar description "1f111ot a commercial phrase, yet that court has held in the case of Schm,ieder v. Barney, 113U. S. 646, 5 Sup·. Ct. Rep. 624, that the plaintiff might introduce. if he could find it, testimony to show that that phrasehasacquil'ed a particular and specific trade meaning other and different. from its meaning in ordinary speech and conversation. And to that end plaintiffs have introduced here the testimony ofa single witness, (Mr. Cummings,) who says that that phrase did have a .lar trade meaning, and he undertook to state what it was. The other witnesses fof the plaintiffs,although gome of them were business men, and .at that time engaged in the dry-goods business, did not testify to the point. Ii think that all of the ,defendant's trade witnesses testified that there was no such particular, special, and peculiar trade meaning of the words ":of similar description." You are to weigh the testimony on both sides of tilat as!?ertion, and if you 'come to the conclusion that the phrase "of .similar description " had a peculiar, well-known, and wide-sprelld trade meaning, other and different from its meaning in ordi· nary speech, and that it covered a particular kind of goods other than the goods in suit, then you have a short cutout of the difficulties of this case, because,these tarlffacts -being passed to regulate the trade and the country, it is .to be supposed that words are used therein in their. commerCial meaning, if they ha ve one.. If, however, you are not satisfied.upou all the testimony that the plaintiffs have shown by a fair prep01;l.derl.\pce of proof that there ,was such particular, and specific trade meaning attached :to that phrase, "of similar description," 'you then comeback to the propositioDwith which. we started, viz., what :rule are you 'to apply for whether goods are similar or not? 'What is it that makes' dry goods "'b! similardes6HIltion" to other dry goods? Is there anyone thing that is controlling of the answer to that question? Several suggestions have been made here. It was suggested (and I think,if I remember the treasury circular accurately, that was originally the idea of the secretaryofthetreasury) that if goods were lended . for women's and children'sdresses,or if they were "dress goods," so called, that circumstance was sufficient to establish a similarity. I however, that the singlerfact that they are used for the same purpose as delaines is not sufficient to control your answer to the question. You must go further than that. Again, it was suggested that the process'ofmanufacture would enable 'You to deterlriine the question: that delaines, as it ,appears, were woven in the 'graYland that it would be enough for you to find that these goods were dissimilar to delaines, if you found as matter of fact that they were not woven iIi the gray., .Upon this point we gain considerable light from the statutes.· 1.861 (only'a few before the. passage of this act
,WHITE II. BARNEY.
477
witll which we are concerned) congress had passed an act using this phraseology: , "On all delaines, cashmere detainee, muslin delaines, barege delaines, composed wholly or in part of wool, gray and uncolored, and on all other gray or , uncolored goods of similar description." Those tElrms, "gray and u11colorOO," you will remember, do not appear in thelater statute with which we are concerned. The section before you in this case, therefore, is more comprehensive than the earlier SllCtiOll; and,.in view of that change of phraseology, I 11)ust charge you that i:t is not sufficient to showdissimilarity, to find a difference in the of man1,lfacture. '. Again, it has been suggested that you are to look only to the materials. The evidence here shows that delaines were made of soft wool, with a short staple, such as the" Australian," or" Botany, "so called, which presented generally a dead appearance; that many if not all of plaintiffs' goods contained longer, more wiry, more elastic, or brighter WOOl; and in some cases pure mohair wool, which came from Turkey, or again alpaca and kindred wools, from South America, and in other cases an English wool, which 'imitates the mohair or alpaca, thus making a more lustrous fabric. As to this suggestion the statute may again be referred to. It includes (by reference) goods composed wholly or in part of worsted, of wool, of mohair, or of goat's hait. It reads: "On all delaines, cashmere delaines, muslin delaines, barega delaines, composed wholly. orin part of worstad, wool, mohair, or goat's hair, and on all goods of similar description." . kind of wopl.used is therefore not the sale controlling characteristic. How, then, are you to determine similarity? While each of these characteristics to which I have called your attention as having been suggested in the course of this trial is not by itself controlling, yet each may be considered by you in reaching your conclusioh,a conclusion which must be based on a comparison oLthe fabrics or products themselves. The supreme court, in a similar case, (Greenlenjv. Good,rich'6upra,}rbas'laid down the rule that the phrase l'of similar descripinJhil:lact mlJansa similarity in product, in uses, and in adaptaand not in appearance or in process of manufacture. The tion t9 word "product," however, hl,lports an article which is made of something, aq.d, which, when made, has characteristics which are apparent to the judging, therefore, as to similarity of product, you may take into consideration the material of which a product is made and its appea:ranpe when made. PS "goods of similar description" in this act was meant com, pleted fabrics, composed wholly or in part of worsted, wool, mohair, or goat's hair, and used for dress goods, which also, as completed fabrics, ipossess,.qualities of general appearance, character, and texture like unto, arnearly corresponding to, or generally resembling, the qualities which delaines, or cashmere delaines, or barege delaines, or muslin ,1.'I1. e, of '\Vhich the goods are composed, the method ol' their manufacture, so far as you are of it,,their we8:ve,
theitsurfdce 1 bt' their color, their uS,es,
their to uses,-all oftheseare'elemeritil
eacll of tqese elements is not to ' SomElmay be'very som'e whollyunrmport8nt. ' 'It 'will be for you 'to judge as th',die'relative importance Of the several elementswhich I,have,suggested t6you.; its proper value;' to then determine, by a of aU, of'them,whethedhe godds are or are not,in the dtliiharylise or the Engljsh language,"of similar description II to the sbmdard. the rule: [The court next instructed 'the jury as! the various introdiib'ed in proof.] ,',
't1l6
found " I "'.: ·
,.t",;'._
the plaintiffs. ,
, ,KEyES et PuEBLO SMELTING
&
REFINING,
Co.
'(CirCUit Oourt, D. Oolorado.July 9. 18110.) PATlfNTS'roB INVENTIONB-"-AertON J'oBI1i'PiuNGBMENT-MuBOBI!I OJ' DUUlJlIs.
S:,152' 9 Sup. Ct. Rep.
as a standard to measure. the value, of the patented article, in determining the damages caused by another case of llifringemen1l.Following Budev. Wutouu, UlO U. I
A sum paid in settlement of a claim for
a patent oannot be taken
, In Equity. ' G. G.8gmes and R; E. Foot, for complainants. ,a. E,.ariBt and TiuYmaBMacon, for defEmdant.
OALDWEr,t.J. The'.owof WinJield Scott othirB v.The Pueblo Smelting c!', ReJining Corhpany, No., 2,097, has been submitted on exceptions to' report' The court does not do more this morning thari'simply state its corieIusions. The plaintiffs established their right to a patent for an improved method oreS'. by a decree 9fthiscourt rendered, by Mr. J ustica MILLER. "Thereupon it. was referred to a mnster to take and state an account of the gains and, proflts that had resulted to the defendants, and the danlsges'thathad resulted to t/1e plaintiffs by reasonbfthe use of this patented'process by the defendant· The' master has made his report, to which both partieshitve filed exceptions. The master reports that thE"gain or profit by th,edefeudant by the use of the plaintiffs' patented .54'J The defendant excepted to that finding. The proof finding of the ma.ster, and the exception is overruled, and the master's report and findings as to the gains and profits, namely, $10,887.54, is cOnfirmed. ,,: , '