Beuttell v. Magone

This was an action at law by Henry Beuttell against Daniel Magone, collector of the port of New York, to recover alleged excessive duties paid under protest. The court directed a verdict for defendant, and entered judgment thereon. 48 Fed. 157. Plaintiff brought error.

In March, 1887, the plaintiff in error imported a lot of rugs. They were classed by the custom authorities as 'Tournay velvet carpets,' and, as such, held subject to a duty of 45 cents per square yard and 30 per cent. ad valorem. The importer protested against this levy, and claimed that the merchandise was only dutiable at 40 per cent. ad valorem. The collector refusing to entertain the protest, appeal was in due time prosecuted to the secretary of the treasury, and, upon adverse decision, suit was brought to recover the difference between the duty enforced by the collector and that which the importer conceded to be due. The controversy depends on the proper construction of parts of the tariff act of 1883, which was in force at the time of importation.

On the trial of the case two witnesses were examined,-one the importer, in his own behalf; the other a witness on behalf of the government. The testimony of the importer was substantially to the effect that the rugs in question were not pieces of carpet, or rugs made from pieces of carpet, but were rugs woven as such; that they were of various sizes, viz. 36 inches long by 18 wide, 36 inches long by 36 inches wide, 54 inches long by 27 inches wide, 63 inches long by 36 inches wide, or 72 inches long by 44 inches wide. The differences between Wilton carpet and the rugs, as to mode of manufacture, as to material used, and when completed, were stated thus: The rugs were made upon a loom of six frames, while Wilton carpet was made upon one of five or less; so that looms fitted for making the rugs were unsuited for making Wilton carpet. The material used in the weft of the rugs was different from that which was used in a Wilton carpet, and the worsted in one was also a different quality from that used in the other. The rugs in question, he said, were woven with cotton backs, in order to make them soft, while Wilton carpet was woven with a jute and linen back. The design of Wilton carpet and that of the rugs were also stated to be entirely different; the one being made to match various lengths, the other being one pattern for the entire rug. He testified that the rugs were sold by the rug, and not by the yard, and were called 'Wilton-Daghestan Rugs,' because they were 'a plush fabric.' He described a plush fabric as one wherein the worsted in weaving was cut with a knife, so as to leave a plush surface, and declared that Saxony, Axminster, Moquette velvet, and tapestry velvet carpets were also plush fabrics, because their threads were cut so as to make the surfaces like plush. In this sense there was a similarity between the rugs in question and Wilton carpet, that is, they were both plush fabrics, although in other respects there existed the differences already recited. The witness, moreover, said that the name given to the articles, 'Wilton-Daghestan Rugs,' in no way indicated that they were made from Wilton carpet, but simply signified that they were a plush fabric. There were two exhibits in the case, which were shown the witness,-one a sample of the rugs in question, and the other a rug or 'bedside,' made from a piece of Wilton carpet. He indicated in these the differences above pointed out, and also stated the general similarity which they bore to each other by reason of their being both 'plush fabrics.'

The witness for the government, after giving his experience in the carpet trade, stated that articles like those imported were known to the trade as Wilton rugs. He added: 'A Wilton is a Brussels carpet cut. It is a plush carpet, more correctly speaking.'

On the close of the testimony, counsel for plaintiff moved the court to direct a verdict in his favor, 'there seeming to be no material dispute on any point in the case.' Counsel for defendant also asked the court 'to direct a verdict for defendant on the whole case.' The court thereupon directed the jury to fi d a verdict for defendant. To this instruction exception was taken and allowed, and the case was thereupon brought here by error. The bill of exceptions contains all the evidence. The opinion of the court below is reported in 48 Fed. 157.

Edwin B. Smith, for plaintiff in error.

Asst. Atty. Gen. Whitney, for defendant in error.

Mr. Justice WHITE, after stating the case, delivered the opinion of the court.