Opinion of the Court. respective parties and the argument of counsel, the jury say that they find the goods in suit are not toys, and, by direction of the court, that they find a verdict for the defendant." Judgment was thereupon entered on the verdict in favor of the defendant, with costs, and this writ of error taken out. Mr. Edwin B. Smith for plaintiff in error. Mr. Assistant Attorney General Whitney for defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Plaintiff contended that the articles in question should have been assessed under the clause in Schedule N, in the tariff act of March 3, 1883, c. 121, "dolls and toys, thirty-five per centum ad valorem;" but the collector assessed them under Schedule B of that act, imposing a duty on "china, porcelain, parian, and bisque, earthen, stone, and crockery ware, including plaques, ornaments, charms, vases, and statuettes, painted, printed, or gilded, or otherwise decorated or ornamented in any manner, sixty per centum ad valorem." 22 Stat. 488, 495, 512. After giving the ordinary definition of the word "toy," the court left to the jury the question whether these goods were or were not toys. No exception was reserved to this part of the charge nor to the action of the court in that regard. The evidence on behalf of the plaintiff tended to show that the articles were in fact toys, and on behalf of the defendant that they were "used in restaurants to serve coffee in, and that they were used by children to eat and drink out of, and not merely for the purpose of amusement;" but the plaintiff, in addition to the contention that they were in fact toys, attempted to establish that such was their commercial designation. Accordingly he offered evidence tending to show that "they were known in trade and commerce in March, 1883, and prior thereto, as toys, and were bought and sold under the denomination of toy plates, toy teas, and toy cans;" while defendant's evidence tended to show "that these articles were not handled by toy houses, but that they were bought and sold under the name of A B C plates, A B C mugs, A B C Opinion of the Court. cans, and the cups and saucers were known as Minton teas or after-dinner coffees." Plaintiff requested the court to charge "that if these articles were known as toys in trade and commerce in March, 1883, and prior thereto, the plaintiff is entitled to recover." The court refused so to charge and this refusal is the subject of the only exception in the record. In Cadwalader v. Zeh, 151 U. S. 171, 176, it was said that "it has long been a settled rule of interpretation of the statutes imposing duties on imports, that if words used therein to designate particular kinds or classes of goods have a wellknown signification in our trade and commerce, different from their ordinary meaning among the people, the commercial meaning is to prevail, unless Congress has clearly manifested a contrary intention; and that it is only when no commercial meaning is called for or proved, that the common meaning of the words is to be adopted." But it is also true that, as observed by Mr. Chief Justice Waite in Swan v. Arthur, 103 U. S. 597, 598, "while tariff acts are generally to be construed according to the commercial understanding of the terms employed, language will be presumed to have the same meaning in commerce that it has in ordinary use, unless the contrary is shown." The inquiry was whether, in a commercial sense, the articles were so known, trafficked in, and used, under the denomination of toys, that Congress, in the use of the particular word, should be presumed to have had that designation in mind as covering such articles. Necessarily the commercial designation is the result of established usage in commerce and trade, and such usage, to affect a general enactment, must be definite, uniform, and general, and not partial, local, or personal. The sole instruction requested by plaintiff was that he was entitled to recover if these articles were known as toys in trade and commerce at the time of the passage of the act and prior thereto. The prevalence of the usage related to the date of the act, and although if a special meaning were attached to certain words in a prior tariff act, it would be pre Opinion of the Court. sumed that Congress intended that they should have the same signification when used in a subsequent act in relation to the same subject-matter, Reiche v. Smythe, 13 Wall. 162, this presumption is not conclusive, and the instruction was not objectionable because not referring to the date of the first appearance of toys in tariff legislation. But the difficulty is that if these articles were only so known in one trade or branch of trade or in one part of the country; partially and locally, and not uniformly and generally; the conclusion announced by the instruction would not follow. Recovery could not be had on a theory involving different rates of duty at different ports of entry, or distinct and differing designations. Plaintiff did not attempt to prove that the articles were handled by toy houses, though evidence was adduced by him that they were known as toys and bought and sold as "toy plates, toy teas, and toy cans," but not by toy dealers according to defendant's evidence; and if it were admitted that their signification as toys was confined to a particular locality, or to a particular class, as, for instance, to those who imported them, (in which case there might be danger that the designation would vary with the rates,) and not to those who dealt in them, and that a different meaning obtained elsewhere or among the latter, then the usage relied on would fail to be made out. The instruction, without qualification in the direction of the essential elements of such a usage, was altogether too broad, and plaintiff cannot complain of the refusal to give it in the terms in which it was requested. The jury found a special verdict that the articles were not toys, and then, by direction of the court, found a general verdict for the defendant. To this no exception was taken, but plaintiff contends that the general verdict was based upon the special verdict, and so was given upon an immaterial issue, and that it was error, there being evidence to establish commercial usage, to direct the general verdict as the legal result of the special finding. This, however, does not appear, and as the judgment was the logical, legal conclusion from the Statement of the Case. general verdict, and no exception to the direction was preserved, there is nothing open to our review on this branch of the case. Judgment affirmed. MR. JUSTICE GRAY was not present at the argument and took no part in the decision of this case. BERBECKER v. ROBERTSON. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. No. 245. Argued February 1, 1894. - Decided March 12, 1894. Under the act of March 3, 1883, c. 121, 22 Stat. 488, brass upholstering nails were subject to the duty of 45 per cent ad valorem imposed upon manufactures, articles, or wares, not specially enumerated or provided for in the act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal. 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, c. 121, contained the following provisions, 22 Stat. 488, 498, 501: "Horse-shoe nails, hob nails, and wire nails, and all other wrought iron or steel nails, not specially enumerated or provided for in this act, four cents per pound." "Britannia ware, and plated and gilt articles and wares of all kinds, thirty-five per centum ad valorem." "Manufactures, articles, or wares, not specially enumerated or provided for in this act, composed wholly or in part of iron, steel, copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per centum ad valorem.” These paragraphs are numbered in the tariff index as 168, 210, and 216. The collector applied the last paragraph to these nails and Statement of the Case. the plaintiffs protested that one or the other of the preceding clauses gave the applicable rate. 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 judg ment, 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: "I am interested in manufacturing. I have been in manufactories abroad, and have seen these goods made, and know how it is done. The heads of the nails are tumbled in barrels of water and chemicals to give them a nice gold color. Before they go into the barrels they are the natural color of brass. These samples are known in trade and commerce as gilt nails and are bought and sold as such. "Being cross-examined by counsel for defendant: "I cannot describe the exact color of brass except I went into a brass mill and showed you a piece of brass. (Referring to a nail in a board:) If I saw it at a distance I should probably say it was brass, but still it does not look like the nails before they go into the barrel. Before they go into the barrel there is no lustre on them, or very little. I do not see anything here that looks like the sheet brass of which the nails are made. With regard to the contents of the barrel referred to by me in my direct examination as 'water and chemicals,' I do not care to state what the chemicals are, because it is a trade secret, but I am willing to state it to the judge alone, so that nobody else hears it. It is a liquid substance of the color of water. It looks like water and nothing else. The process through which these exhibits are put is called by some polishing; not polishing by means of rubbing, but it is done by friction, by the shaking of them up, by the rolling of the nails in the barrel. The length of time they are rolled depends upon what color you want to get on them; sometimes an hour, sometimes two hours, and sometimes it takes longer. I roll them until I get the color I want. Increased rolling tends to darken the color sometimes and sometimes to lighten it. |