,:>F10:
EnHAltiD'1'; Collector j
tI.' !U'LJ..MAN,et
,a4:.
1., (!lU8'l'OM8 !DUTIBIl-AonolJs'1'Q ,RECOVEI{ , iml'prted certain buttQ\ls cOI1JPQsecJ brass and partly ofttn; the collector impbsell. a duty of 45 'per cent; lid valorem under the residuary 'oIn· · of theJIietal schedule (0) of the tari1f act'of 1883., sued for an aI11lg,e<1 the were dutiable tM <;lause of N\\l'hicbplaces a duty of 25 per cent. on buttons not specially ,enumerated, not 10eluding brass. gilt, or silk buttons. Plaintiffs introduced evidenpe tending to show ,buttons" bad a pommercial rqeaning, which inQlu!ied most, but not all. were known butto!ls'JIi&\ie of brass; that certain buttons made of as "gilt, ,Wttons;}' ana tbat,tbe button, ,bnp"rtea by, plaiJl,ti1fs were knowuas lJefendant gave evidence tending to,show that tbere was no ditrere1'leebetweetl the 'trade meaning and tbe popular meaning of "brass buttontl. ": He1.(l, tbat tbe court properly cbarged tbat, if the Put,tons in question were ; not. p\lllitQns, to the trade IDeaning, a verdict sbould be returned for plarntl1'fs; fordefendaDt. ' ,
9.
BAloIE-Evt1JENOE,-HARMLEss' Jj]RROR.
Defendllint ,baving intJ.'odllced witnesses wllo testified that the term "brass butbad nO pitrerent,J;lleaning in trade than in common parlance, the court permitted them 'on cross.exaIDination to be asked what theY understood the term to mean in commOn parlance. , ,Each answered that it mean't,buttons composed p,rincipally ;<If: Held, that, while the definition of terms no special meaningill a matter of law, tbistestimony was harmless, because the definition given by the witnesses was precisely that which the court would have ,given, and also becauselluiliury ",ere instructed to return a verdict for defendant unless the importatio'ns ,were 'not brass buttons 'according to the commeroial, meaning of the term. '
Error to the Circuit Court of the United States for the Southern District ofNewI¥ork. Actiou:by Louis Ullman and others against Joel B.Erhardt, us coll.ector of the port of New York, to recover duties paid under protest. Verdict and Ju.dgment for plaintiffs. Defendant brings error. Affirmed." " , EikoardMitchell, U. S. Atty., and Oharle8 DuciJn.e Baker, Asst. U. S. Atty.,. for plllintiffin error., Wm.Wickham Smtith,for defendant in error. Before WALLACE and SHIPMAN, Circuit Juuges. WALLACE, Circuit Judge. This is a writ of error by the defendant in the court below to review a judgment of the circuit court for the plaintiffs, entered upon the verdict of a jury. The action was brought to recover duties alleged to have been illegally exacted by the defendant as collector of the port of New York upon importations of merchandise by the plaintiffs in 1888, consisting of metal buttons, composed partly of brass and partly of tin. The collector assessed a duty upon the merchandise as manufactures of metal under the clause of Schedule C of the tariff act of March 3, 1883, which reads as follows: "Manufactures, articles, or wares not specially enumerated or provided for in this act, composed wholly 01' in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any othpr metal, and whether partly or Wholly manufactured, 45 per centum ad valorem."
ERH4RDTV. ULLMAN.
415 duty should have
reads as follows: . , " "Buttons and button molds, Dot specially enutnerated or provided for in this act, 'not includ'ing brass, gilt, or silk buttons, 25 per centum ad va'. '
been assessed 'tmder the clause of Schedule Not the"same act, which
Theplaiiitift'srecovered upon the theory that
Evidence was g'iven for the, plaintiffs upon the, trial tending to show that at and prior to the time of the passage of the act brass buttons were a 1Vell-known article oftradeand commerce in this country; that the term "l>rass buttons," as commercially used, covered many kinds of buttons'made of brass, but not all kinds; that there were buttons made of htass, but gilded. and these were commercially known as "gilt buttons ;"and that buttons like those imported by the plaintiffs were known to the trade' as "fancy metal buttons," and not as" brass butgave evidence tending to show that prior to and tons." The at the time of the of the act there wllS no distinction betweeil the trade meaning of the term and its meaning in common acceptation. The trial judge instructed the jury, in substance, that if they found that the importations ill'suit were 'not brass buttons, according to the mean· ing of that term as it was understood in trade and commerce in this country at the time of the passage of the tariff act, the plaintiffs were entitled toll. verdict;, otherwise the defendant should have a verdict. Inasmuch as it was not claiuled that the importations were gilt buttons or silk buttons, but were buttons of which the material was tin and brass, the plaintiffs were entitled to recover, unless the importations ha've been as brass buttons, and, as such, not inClUded in the general enumeration of Schedule N. If, at the time the act was passed; there were no articles commercially designated as "brass butItons" by dealers in this country, then, doubtless, all buttons made of brass, or of brass as a component material of principal value, would fall within the class not included in the enumeration of Schedule N. But if there were such articles, it must be presumed that congress re'ferred to them, because in construing statutes imposing duties upon imported is only when a given article is foun<;l not to have had a comniercial designation at the time of the enactment that resort is to be had to other definition. "One, of the more recent cases in which this familiar rule of construction is reiterated is Robertson v. Salomon, 130 U. S., 412, 9 Sup. Ct. Rep. 559, in which the court used this language: "The commercial designation, as we have frequently decided, is the first and most important designation to be ascertained in settling the meaning and application of the tariff laws. * * * But if the commercial designation failS to gi V'e an article its proper place in the classification of the law, then resort must necessarily be had to the common designation." It iseaid in the still mOl'erecent ease of Twine Co. v. Worthington, 141 U. S. 468, 12 Sup. Ct. Rep. 55: "In fixing the classification of goods for the payment of duties the name or designation of the goods is to 'be unilerstood in its known commercial sense,
416
FEDERAL RlllPORTER,
voL 51.
and theirdllnQQ1itlation in t.he matketwill control.' their. classification without regar4 to their scientific djlslgnation. the material of ,which they may be made, or the use to which they may be applied."
,The jqdge submitt!3d to the jury the only questions of fact which were in the case. The only legitimate bearing of the eviden(le introduced by the defendant was its tendency to show that the importations had no coqtme,rcial designation.. ' If· there was no commercial designation, the pla,intiffs had no ,case j and this was the issue distinctly left t.o the jury bytbe instructions of the judge. !twas clearly correct to receive testimony in behalf oftheplaintiffs as to the meaning of the term in trade and oommerce, and it would have been error "brass to instruct jury, as req1,lested, in effect, by the defendant, to ignore that testhnopy. There is therefore no merit in the assignment of error respecting the instructions given and refused by the trial judge. assignments of error relate tothe reception of testiTqedefendant introduced witnesses who testified that the term "brass buttons" did not have any different meaning in trade and commerce than it bad in common parlance. Thereupon the witnesses were permitted,on cross-examination, under objection and exception by the defendant,to state what they understood the term to mean in common parlance. , Eltch of them testified' that he understood it to meau butof brass. Although these statements were not tons made. of any ex;cept aEJ affording a test of the intelligence of the witnesses, becaqaethe definition of terms having no special meaning is a matter of law, they were innocuous, both because the definition of the witnesiles was precisely that which' the court would have given to the jury, anq aiso because the jury were instructed that the defendant was entitled to a unless the importations were not brass buttons aocording to ,the commercial meaning of the term. The judgment is affirmed.
UNITED STATES fl. FIFTlllEN BARRELS
OF
DisTILLED SPIRITS.
(D£strict OI1Wft, D.Ken.tuekV. April 12, 1892.) CUSTOMS DUTIES-FALSE
Wbere an information of forfeiture of oertain spirits, on tbe ground that they were imported in violation of Rev. St. § 2864, charges, among otber things, that tbe said spirits were imported by means of an entry whicb was false, in that it stated that the spirits were" American whisky reimported in tbe same condition as when exported, " it is good all to this speoiflo allegation.
011' FORII'EITURB.
i.
BAME-INDEli'lNITENESS-WOHDS 011 STATUTE.
An article is bad for inde1initel1ellS wbicb charges a violation of that section in the general terms of tbe statllt;eBS follows, namely: Tbat said spirits were entered by the owner, consignee, or agent knowingly, "by means of the said invoice, wbich was tben a false invoioe,..anaby means then and tbere of,a false oertiflcate of a consul, viCe consul, or commercial agent; and by means of tbe said invoice, wbicb then and there did not contain a true statement of all the particulars therein required by the statutes of the United States, and by means then and there of other false and fraudulent documents and papers, and by means of otber false and fraudulent practices and applianoes. "