288 urged in. of flue in flu,e the old boiler flue JnQ,tio;tledin the PllevjOUS tari, and before the inventions of of ,Fox were :&ut we have no certain assurance of tb.at,cpX1EIt,rucijOJl.!,an9:wp.enever, the, intention of congress is uneerWn of 1;lle,llol,1bt must bein favor of tp.ei.Jnporter. lIetre ¥J anl.U'ticle:kllown by the j;nventorand the maker, by the importer, and by practical engineers, as a "ribbed furnace flue" or fiue,".a;o.d occasionally. as a "ribped furnace;" but aU being ;equivalent and llleaning the', sa.me thing. These newlY-i.n:Vfl;o.ted fiue$ in u,se for nearly four years before ot"fue 9f October, were known in the UniteQ. States, and iUs fairly presumable th&t th,QY, were nQt u;:Qik.nown tq, old fiqe imparted heltt Ell11'I'QunQing it,and,'i.3Pdqes the modernflue, whether the latw:rij)Illa,(le patent or under the Fox patent. ThesQitn:l:\e,wprks authority, found<among the el:· one exception; speak of the Purves invention as "a flue wb.enused as, a., furnal16," and of naval QiUcers to the navy depl.U'tment,lmal\.e use of Uke exprelilsiO,:Q.S. But,: as already observed, the fiues" ,made by the iron works .a.tBrooklyn, accoJq.panied. byftn illustrative.cut of one of the manubwtuneQ; produc1ll, stamped: would seem to the 'botllas to the, to the sub· $tanoo0fi tl!.e articleinlPQrted. '. , f !! .' ' , been Elaid that these goods are dutiable underpl;WJ!,graph 157 at 21-2 cen11sper pOlllld,and that the decision of the bQardof D1ll.Btbe I
...·'ue. inte:q.(f t(),include thif'\
i L
:Tn re' PHELPS, Colleetorof Customs;:
D. Cal!t?:rnia:November 28,1892.) CUSTOM!r DUTIll:S"-'C!.ASSLtIOATroN-SUMATRAToBACoo....JCIGAR WRAPPERS.
"On .81, qH\lsti0p' whej;b,er .certaln lIllPPrtations of Sumatra topiga,r WrllpJlers, and dutiable at two dollllJ,'$ pet pound UI1ller the tarift! a,.ct of October 1, 1890, (Schedule F, par. 242,)' there was an irreconcilable' oon1lict between the witnesses for the importer and those for the goveJ:Ument, the tortnerc1aiming that the tobacco W/1stoo for wrappers;, buUt appel4"lildthat a large part of the, imPortation haqlllreadybeen 8 01dfor wrappers at $2.65 per pound, whlleit$, 'Value for' could not $1 of $1.25 per pound, and that it liad been made into cigars, arid sold to the trade. Pending the .mallEj from, of the tobac.oo, were appar· entlY' of, Rood JUld .dElteriQJ;ated" ,dJ:Ylng during the courser of' five months; BbU, that the tobacco' was' dutiable at $2 per pound.
Application of.Timothy G.,Phelpa, collector of customs for the port of 8a.n,Fl'ancisco,Cal., for a review 0fthe questions of law and fact involved in the decision of the board of general appraisers on duty at,the port}of New York on the 19th: day of December, in respect't\:) the claSSification of .146-bales of leaf tobacco, imported by
IN RE PHELPS.
239
Liebes Bros. into the port of San Francisco in bond from Hamburg, Germany, by way of the port of New Orleans. Reversed. C,qarles A. Garter, U. S. Atty., and Charles A. ShUl'tleff, Asst. r. S. Atty., for petitioner. Henry C. Dibble, for respondents. McKENNA, Circuit Judge. This is an application and proceeding under section 15 of the act of June 10, 1890, entitled "An act to sim· plifythe laws in relation to the collection of the revenue," to review the decision of the board of general appraisers determining the classiftcation of certain Sumatra tobacco imported into this port by Liebes Bros. The law in regard to the classiftcationand duty on tobacco is as follows: Sections 242 and 243 are as follows: "Sec. 242. Leaf tobacco, suitable for cigar wrappers, If not stemmed, two dollars per pound; if stemmed, two dallars and seventy-five cents per pound: provided, that If any portion of any tobacco imported in any bale, box, or package, orin bulk, shall be l!ultable for cigar wrappers, the entire quantity .of tobacco contained in such bale, box, or package, or bUlk shall be dutiable, if 110t stemmed, at two dollars per pound; if stemmed, at two dollars and seventy-five cents per pound. .243. All other tobacco in leaf, unmanUfactured. and not stemmed, thirty-five cents per pound; If stemmed, fifty cents per pound."
There were 478 bales imported, of which two entries were made. The 146 bales involved in'this appeal wel'e entered on the day of the arrival of the tobacco at 35 cents a pound, and the board says were so passed on September 23d, by the appraiser, after an examination of each bale; on what kind of an examination we shall see hereafter. The board further says the peculiarity of the importation of Sumatra tobacco for fillers attracted public comment, and resulted in protests against such classiftcation. A re-examination followed, and a reappraisement was made on September 20th, and the tobacco classified as suitable for wrappers, and dutiable at $2 a pound. One day after the appraiser's original classification, and before the change of it, Liebes Bros. entered the rest of the tobacco, to wit, 322 bales, as also unsuitable for wrappers, and dutiable at 35 cents. It was classified, however, as dutiable at $2. The importers protested, and the protests were referred to the board of general appraisers for decision. The board reversed the collector' as to the classification of the 146 bales, andatlirmed his action as to the l'<:st of the tobacco. Its decision as to the 146 bales is bronght to this court for review. The law makes the record in this court to eonsist of the evidence taken before the board of appraisers and such further evidence as may be offered by the parties, and it is therefore manifest that the aspects of the case may be changed here from those presented to the board of appraisers. Indeed, the only investigation has been here. The examination of the tobacco was by samples from the bales, nOli {)f the bales themselves, and its original classification at 35 cents, and its reclassification at $2, and the decision of the board of appraisers, were all made on' the same samples. They were assumed to' be true bJf' the customs officers and by the board of appraisers. Here they challenged,and the new testimony which has been takbn
are
240
}'EDERA,L REPOR'I1ER.yol.·53.
is directed. in part to their impeacb)ne:nt, and, though not entirely were satisfactory, there is much strength in it. When the 146 15 bales-10 per cent. of the invoicewere selected lor examination. It is obvious that, if taken without special selection, they would have representedthe whole invoice. By whom they were selected, or in what way selected, does not appear. On this the record is silent. All of these 15 bales were opened by MrJTucker, who was assistant appraiser. ''Finding them," as he testifies, "all small,and in. bad conditIon," he told the appraiser he desired the. whole invoice for examination. It may be said, if the had been examined, many aspects of this controversy would woUld be any controversy at all. The appraiser be different, if replied to .the request that· he did not think· it necessary to send up the whole invoice, but he would sl'lnd an examiner to :take samples of the: balance,. and he. ordered. Examiner Hollywood to do so; and Mr. TuCltfel':f1qrther testifies that he saw the samples which Mr. Holly",ood whether they were like or unlike those drawn by Mr. Hollywood is nut called as a .witness. Thetestim:onyj however" shows that .131 bales of the tobacco were stored by Liebes Bros. in the California wal'chouse, and that Hollywood, or' som,e .cusWmhquse officer, and one of the Liebes and another man, drew samples trom those bales. Neither of the latter is called -to. testify. But S.H. Noble, manager of the warehouse, and Edward Gallagher, therporter, were called as witnesses. They saw the samp1es drawn,.and; while their observation of them was to some extent casual, and as lay in piles on the floor. of the warehouse, the witnesses are quite 'positive were not like the samples eXhibited to them, and on which we have HeelL 1he decisions of the collector and board of appraisers were made. Gallagher was quite emphatic. The Hollywood samples were exhibited to him, and he was asked jf he sa-\vany such tobacco as that. He answered: "None at all; nothing like it at al1.1' Rut it is urged this testimony the tobacco at different times,-the time when it was drawn\\-ith the time iiwasreturned to this that there are intimations of a change.in:its condition. Collector Phelps, in a letter to the board of appraisers, forwarding the protests of the importers, said, "i'he samples have been handled so much that they do not correctly represent thei.merchandise;" and the board, in its return. to this court, makes this statement: "And there are also hereto samples of this case the merchandise in question. The samples and <'tre forwarded in such, condition as they are now in the best condition, in which they can be forwarded after having been handled by a number of examiners, experts,. and other persons, in addition to changes produced by.variations in atmospheric conditions." The extent of the changes the board does no:f; state, and what foundation the collector' had for his. statement does not appear. The board of .appraisers assumed, notwithstanding the collector's warning, that the change in the samples which came to it could be seen and allowed for-by the witnesses who appeared before it, and the opinion of the witnesses and the board's decision are expressly put on the ground that thetoba,cco is too short to be suitable for wrappers. This was
241
the defect in th8samples Mr. Tucker drew. The board finds it to be the defect alsom the samples Hollywood drew, or rather returned; and this was the differenoo which Gallagher and Noble testified to between the samples they saw Hollywood draw and the samples returned by him to Tucker, and sent by the board to this court. The board has sent up 134 hands,-a "hand" being a bunch of leaves. Of these 112 are short, and nearly of a size. Twenty-two are longer, and near of a size. Of the short ones, 10 are samples drawn by Tucker; the rest are samples returned by as drawn by him. They are alike now, and, unless and "atmospheric con. ditions" acted unevenly, selecting only the Hollywood samples, they must have been alike when Pltssed on at the customhouse. This time and the. time Hollywood returned the samples must be distinguished from the time he drew them, the intimation being that the samples drawn were not jjhe ones returned by him to Mr. Tucker; and it must also be that all the decisions were made on the same samples. But) whether the samples were alike or not, they are un· like those drawn by McCoy, the government agent. . The investigation before the board of appraisers was not very thoro:ngh. The government was not represented at all. The board was .notified by the collector that the merchandise had been shipped to New York to be presented to the board by the appellants when the case.was called. It was not presented, and the board did not call for it. The board did not seem to think that it was necessary, and based itB decision on the samples before it. The government, however, was not satisfied, and started an investigation, detailing an agent by thenume of James C.McCoy for that purpose, who had had some experience. He traced to Cincinnati and to several places'in New York the total importation of 146 bales. He found 14 of them were composed of short hands and 131 of long hands, and he testified not one of the 131 bales contained tobacco like the samples said to be drawn by Hollywood and exhibited to the board of appraisers. The truthfulness of Mr. McCoy the importers' counsel attacks somewhat in argument, but he is amply cOlToborated. He found 14 bales of short tobacco. Mr. Tucker says there were 15. The difference is not important. Whether 14 or 15, it is striking proof, and shows that the bales first selected for examination when the goods were entered were unfairly selected, and did not represent the invoice. The board of appraisers, in its decision, calls attention to what it designates as "several unique features in the case." The board, however, did not consider that they overcame the undisputed proof of the quality of the tobacco presented to it, and possibly they did not; but the new evidence adduced here has given these "unique features" im· portance· and strength. The board says: "Mr. Liebes claimed that the tobacco was imported for fillers and binders.
*'.
All other witnesses testified that they never knew of any Sumatra tobacco, except cuttings froU) wrappers,being used as fillers; and there was no testimony to the effect that such tobacco is, or has ever been, used as binders. Various tobacco dealers stated that the price in this cuuntry of filler tobacco, equal or superior to the best Sumatra: filler, is from to 30 cents a pound. It: appears, therefore, incredible that Sumatra tobacco should be imported tor any such Iuthe entry of the tobacco there was also a pecul·
v.53F.no.2-16
FEDERAL REPORTER ,vol.
53.
daritYo'peir tinmtavorableoritlClsm;The importatlpn of 478 baJ.es"ai'rived.ln n,tade of a1otofpurely' 1i)lerWbacco., Wben 1;his, was r,6turued by the as, filler tobacco, the 332 bales, contaIning more, than .sOper cent. of wrappers, was enterooas 1mers.The board is of the oi;linionthat no Sumatra tobacco is imported in goodf81th as fillers" and every bale of such tobacoo so entered shotlld be rigidly scrutiIlli.ed."
'1'0 avoid the possible imputation or suggestiveness of these facts, MI'; Jacob Liebes testified that the firm had instituted some satisfactorye;qlerimentswith Sumatra tobacco as binders and fillers, and im· pol'tedthe tobacco involved here to continue them. That after its purchase, and before its arrival,they determined to go out of busion accouI1t of the opposition to Chinese labor; hence shipped the,'tobacco to :New York. Mr. LOuis Liebes, however, testified before the bbard of appraisers on November 10th, after the tobacco had been shipped to New York, that his then inte;ntion\vas to use it for fillers and binders; and yet on the 13th <my Of 1892.MI'. McCoy fOUI1d42 bales of it in the possession of A. Davis & 00., 'in Cincinnati, to whom it had' been sold for $2.65 a pound M wrapper tobacco. Filler tobaceaw3S then selling at from 5 cents to 50 cents, and, if Sumatra 'was cheaper at ,a higher'price, the highest fixed by .the testimony was, '$1 or $1.25 a povnd. :Mr. Liebes, got '2.65 a pound. This, evidence is attempted to be depreciated by time was given for! pltyment,but stronger testimony of the opinion of the iinporters of the quality of the' tobacco cou1(I'lhardly be adduced, and ':D!()'mjustice will be done to them if tJie government treat it in de.aling with them as they treated it in dealing with buyers from them.. it was said in the that the rest of the tobacco was SOld, but prices, or fQl:' what purpose, was not disclosed. If fur a or ata lower price, than that sold in Cincinnati, it wouia seem natural for the importers to It is not meant to besa;Idthat after an article has been properly imported it not be sold! at any price; but if the article is in controversy, what it sells for is,some evidence of what it is, and strong evidence, in the absence of showing a demand so eager that it disregards differences in its quality. 'There are other circumstances in the case which atleast evince a disp6sition to by the importers. The tobacco was importedlnto OaIifornia via New Orleans, and· was' sent to New York from here, incurHng an expense wliich, if the tobacco was filler, and to be sold as filler, they could not have hoped to have reimbursed. On 60 of the bales the invoice numbers were changed, confusing their identity, a,nd there was also an attempt to destroy the coverings on some of the bales. 'Meager information was given to inquiries made of the members of the firm in San Francisco and the principal member of the firm in New; York., Mr. Louis and the one who bought and impOl1:ed the tobacco, was reported not in to the government agent, when he was in; and at a subsequent time; while not denying his i"entity, refused to admit it. They shipped' the tobacco from San,Francisco to NewYork, but did not exhibit it to the board of appraisers, and have aCted throughout as if the government was entitled to no disclosures or assistance from them, and have risked inferences against
IN ,.:\tE PHELPS.
243
iql,putations against them-which it ,would seem they tried. y,o if,it had been possible to have avoided them, trusting to the ingenuity of to make excuses,rather than dence which would have superseded excuses. But the chief inquiry is as to the character of the tobacco represented by the samples drawn by Mr. McCoy, the government agent. He drew samples from all of the bales, and there is no doubt that they correctly r,epresent ,the tobacco. There is a marked contrast between them and the samples exhibited to the board of appraisers, or passed on at the customhouse; the contrast is too great, it seems to me, to be accounted for by difference in handling. But, whether so accounted for or not, it is'unimportant to dwell on now. That has been considered. Care did not make them representatives of the bales from which they were drawn; it only preserved them as true representatives, and therefore better evidence than those which come discredited by imputations of changes caused by handling or atmospheric conditions. Agreat deaJ of expert testimony has been taken on the question of their quality, which, is very conflicting, but there are circumstances which help a discriIpina.fion. The witnesses for the government are very sure that th.etQbacco is suitable, for wrappers; the witnesses for the importers are very sure that it is not, giving reasons therefor. One of the reasonS.w,ven was that it was too brittle. Some thought that it was so brittle that it would not even endure' wetting, and all thought, it could not be rolled around a cigar. Experiments showed that neither reason was good. It was made into cigars, and the cigars introduced in evidence. The witnesses then shifted,. and the defects iIi the tobacco which they were sure would prevent a cigar being made at all, they put ofl: the appearance of to another and somewhat indefinite time. They testified that cigars, after they were made, were damp, lJ,nd it was usual to allow them to remain on shelves a while before borlng.Thecigars in this case were boxed immediately after making,and hence .boxed damp; and the witnesl'les sure-no surer, howeveI:, than in the other prediction-that they would be brittle when dry, and that the wrappers would break. This, however, is speculation. It and all the grounds of it are denied by other witnesses of experience and skill. The witnesses who utter it are discredited by failure other predictions, as confidently, uttered. This testimony was given in June. It is now the latter part of November. No brittleness has yet appeared. I examined the cigars on last Saturday, and they,: as far as the tenacity of the wrapper is concerned, appear and handle like other cigars. The color of the tobaccco and the cigars made from it is declared to be bad by witnesses for the importers, making them unsalable,-not commercially good. It is enough to say that thiA testimony is met on all points by counter testimony on behalf of 'the government, and we have already seen that 42 bales of the tobacc,o were sold by the importers as wrapper tobacco to a firm in Cincinnati. and it is only necessary to add that it was testified to by the purchasers and other experts as suitable for wrappers, and was made up'into cigars and sold to the trade. Certainly the cigars must .have been commercially good. Against such practical proof, abstract abstractopmion, anywaY-eannqt ·prevail. 'Ppon
244
FEDERkt REP(lRTER ,vol.
Ithllik tliatthe toba;ecdln:vi>lved In'thIs must be classified as teaf tobacco, unstemmed, suitable for cigar wrappers, and dutiable at two dollars a pounll. "
In re MFlGROZ et al. (Circuit Court, S. D. New York. June 13,1892.) CUSTOMS DUTIES-CLASSIFICATION--''SILK AND COTTON VELVETS-SELVEDGES.
Silk and cotton velvets imported subsequent to O<ltober 6, 1890, are dutiable on the weight of the goods, including the selvedges, under para. grap4, 411 of the tari:ff act of October 1, 1890.
At Law. Application for reView' by the importers of a deCision of the Board of United States general appraisen; under the provisions o,f section 15 of the CU8tOWS administrative act of ,June 10, 1890, as to the l:ate and amount of duty On <'ertain silk and cotton velvets imported by them October 30, 1890. The collector of the port of New York assessed the merchandise for duty on the' weight of the goods, including the selvedges, Under pal'9.graph 411 of schcduIl':'Lo:ll the tariff,aot of October 1, 1890"at $1,50 per: :pound and 15 per cent, a,dvaIOl:em" 'l'he paragraph under e;onsideration is;Rs'follows: "411. VEllvets, plushes," or other pile fabrics, of selvedges, than seventy-five per centum in weight of sflk, one doliar and fifty cents per pound and fifteen 'p'er cent. 'ad valorem; containing, exclusive of selvedges, seveirty-five POI' centum or more: in weight, of ,silk, three dollars and fifty cents lJer pound and,fiftl;len per cennnn ad valorem; but in no case ,;;hall any o,f, the ,foregoing articles p;iy a less rate of duty than fifty per centum ad' 'valorem.""" , The importers protested on the ground that, in determining the number of pmuidB upon: which the duties were assessed, the dutiable weight consisted only '01: the weight of the goods, exclusive of the selvedg'e!i. The boar49f United States. appraisers, in,thl;lir decision of the case, found, among other things, as findings of fact: ' "(2) That sald velvets werecbmposed of silk and cotton, and contained, excluding the selvedges, less than 75 per cent. in weight of silk; (3) that said velvets were pile: fabrics woven, with plain selvedges, which wer,e integral portions of said fabriCS; (4) and the specific or pound duty was levied upon the weight of the entire fabric." , ." . . ,". ' As conclusion of law the board found that the duty was properly assessed till' above findings of fact. Thelmporters'appealed, according to Jaw, to the circuit court.
Curie, Smith & Mackie, '(W.Wickham Smith, of counsel,) for im· porters. , Edward Mitchell, U. 8. Atty., and James T. Van Rensselaer, Asst. U. S. Atty. ' ' the circuit court, LACOMBE, Circuit Judge, afAfter firmed the decision of the board of United States general appraisers without delivering any 'opinion.. EDISON ELECTRIC LIGHT CO. v. MATHER ELECTRIC 00. (CIrcuit Court, D. Connecticut. "])eeember 17, 1892.) No. 723. PATENTS-SUIT FOR INFRUi'GEMENT-Pr,EADlNG-DEMURRER-AMENDMENT.
In a sWt by a corporaijpn for of a patent. defendant murred to the bill because.it failed to allege a written assignment of th(> patent, or that the article had not been patented or described' in any