152 U.S. 373
BERBECKER et al.
March 12, 1894
This was an action at law, brought by Julius Berbecker, John J. Henderson, and Thomas Morris against William A. Robertson, collector of customs for the port of New York, to recover duties paid under protest. A verdict was directed for defendant, and, to review the judgment entered thereon, the plaintiffs sued out this writ of error.
This was an action to recover duties paid under protest upon importations of nails, described in the bill of particulars as 'upholstering nails,' between September 21, 1883, and January 22, 1884.
Schedule C of the act of March 3, 1883, contained the following provisions, (22 Stat. 498, 501:)
These paragraphs are numbered in the tariff index as 168, 210, and 216.
The collector applied the last paragraph to these nails, and [152 U.S. 373, 374] the plaintiffs protested that one or the other of the preceding clauses gave the applicable rate. At the trial a verdict was found, under the direction of the court, for a portion of the duties collected, and plaintiffs consequently recovered a judgment, but a judgment for less than the amount they claimed. The only witness was one of the plaintiffs, and the bill of exceptions, containing his testimony and the subsequent rulings, is as follows:
Judgment having been entered on the verdict, a writ of error was duly taken out.
Edwin B. Smith, for plaintiffs in error. [152 U.S. 373, 376] Asst. Atty. Gen. Whitney, for defendant in error.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the ocurt.
Upon this record it is apparent that these nails did not fall within the first of the three paragraphs, as they are referred to in the evidence as made of sheet brass. Counsel produced in argument some nails with wrought iron shanks and brass heads, which he claimed were the same as those in question; but they were not before us as exhibits, and, moreover, appeared to be in the nature of brass ornamentation.
Nor did the nails come within the second of the paragraphs, 'Britannia ware, and plated and gilt articles and wares of all kinds,' unless the principle of commercial designation could be properly applied, and such designation was made out; for we concur in the view that gilt articles and wares, taken in connection with Britannia and plated ware, mean articles actually gilded by overlaying, and not merely made to look gilt by rolling them in a secret chemical soultion. We are not prepared to hold that, under such circumstances, this paragraph would be applicable, even if nails thus manipulated were commercially designated as 'gilt nails;' but, if applicable, we are still of opinion that the judgment must be affirmed.
It has just been held that the usage from which it may be inferred that congress intended to use particular words in a particular sense in a tariff act must be definite, uniform, and general, and that such designation is to be determined as of the date of the act. Maddock v. Magone, 14 Sup. Ct. 588.
Tested by this rule, the evidence was entirely insufficient to show such a usage in respect of denominating this class of nails 'gilt nails,' contemporaneous with the tariff act of March 3, 1883, or otherwise.
True, plaintiff testified that the articles 'are known in trade and commerce as gilt nails, and are bought and sold as such;' but his testimony on cross-examination practically [152 U.S. 373, 377] limited his personal knowledge of usage in the trade to his own practice. He could not say that they were not bought and sold in trade and commerce as upholstery nails, and he admitted that they were sometimes so bought and sold as French, chair, and furniture nails. The evidence of a definite, general, and uniform usage was so slight, if any at all, that a verdict based upon it would be set aside; and the circuit court committed no error in striking it out, and in directing a verdict for defendant as to these particular nails.
Something was said about the lack of precision in the motion 'to strike out the testimony as to the fact that they were called 'gilt nails," and the effect of not making it until the conclusion of the testimony of the witness; but, as no further evidence was offered, the motion practically amounted to a demurrer to evidence, and, if it was not sufficiently comprehensive, that was cured by the direction of the verdict. The circuit court was right, and the judgment is affirmed.
Mr. Justice GRAY was not present at the argument, and took no part in the decision of this case.