Cadwalader v. Zeh

At law. Action by John E. F. Zeh, Frederick Ebeling, and Theodore Reuss, trading as Zeh, Ebeling & Reuss, against John Cadwalader, collector of customs for the district of Philadelphia, to recover duties paid under protest. Verdict and judgment were rendered for plaintiffs, (42 Fed. 525,) and defendand brings error. Affirmed.

Statement by Mr. Justice GRAY:

This was an action, begun May 22, 1888, against the collector of the port of Philadelphia, to recover an excess of duties paid under protest upon four lots of earthenware, consisting of small cups, saucers, and mugs, and plates five or six inches in diameter, having upon them pictures of animals and of other objects, and letters of the alphabet, imported by the plaintiffs during the winter of 1887-88, invoiced as toys, and which the plaintiffs contended should have been assessed under the clause in Schedule N in the tariff act of March 3, 1883, (chapter 121,) 'dolls and toys, thirty-five per centum ad valorem,' but which the collector assessed under Schedule B of that act, imposing a duty on 'china, porcelain, parian, and bisque, earthen, stone and crockery were, 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. 495, 512.

At the trial, one of the plaintiffs and many other importers and sellers of china and earthenware, and of toys and fancy goods, in Philadelphia, called as witnesses for the plaintiffs, testified that there was a class of goods in their business made of earthenware, and consisting of cups, saucers, mugs and plates, commercially known and designated, bought and sold, as toys; that the articles in question (samples of which were produced by the plaintiffs) belonged to that class, were sold at $6 a gross or 50 cents a dozen, and were intended for children to play with, although though they could be, and sometimes were, used by children to drink or eat from.

The defendant called as witnesses two dealers in china and earthenware, who had been appraisers in the customhouse, and many manufacturers of earthenware at Trenton, in the state of New Jersey, all of whom testifled that there was a class of earthenwere goods known in the trade as toys, but that the articles in question did not come within that class, because they were not small enough, and were fit for practical use, and some of whom testified that they were commonly bought and sold as cups, saucers, plates, and mugs.

The defendant offered to prove by one of these witnesses that just before the trial he called at the toyshop of Schwarz, in Philadelphia, and asked for toy ware like the articles in question; was told that they did not keep such articles; and was shown tea sets of a smaller size. And he offered to prove by another of the witnesses that about the same time he called at John Wanamaker's establishment, in Philadelphia, and, upon inquiry at the toy department thereof, was informed that the articles in question were not sold in that department as toys, but were to be found in the regular china or crockery department, and that he thereupon went to that department, and was shown such articles. The court excluded this evidence, and the defendant excepted to its exclusion.

The only other witness for the defendant testified, without objection by the plaintiffs, that he had been for two years in Mr. Wanamaker's employ as assistant manager of the crockery, china, and glass department; that he knew the articles in question in his business; that they were known to the trade as plates, cups, saucers, and mugs, and were sold as child's sets, and their principal use was to eat and drink from; that the business in his department was not large in those articles; and that he knew nothing about a toy department in Mr. Wanamaker's establishment, except by passing through it.

The defendant requested the court to give to the jury the following instructions:

'(1) If you believe that the goods in question are bought, sold, and used as earthen, stone, or crockery ware, and not as toys, then your verdict should be for the defendant.

'(2) If you believe that the articles in question on March 3, 1883, and prior thereto, were commercially known and designated as earthenware, and if you believe that they were not at that time described and designated as toys, then it is immaterial how they have since been known and designated, and your verdict should be for the defendant.

'(3) If you believe that the articles in question are known as earthenware in the trade, and are chiefly used as other articles of earthenware, stone, and crockery ware are used, and are not chiefly used as playthings for children, then your verdict should be for the defendant.

'(4) The circumstance that the articles in question may possibly be used for purposes other than household purposes is not controlling, and, even if you believe that sometimes they are incidentally used by children as playthings, your verdict should be for the defendant, if you believe that their chief use is for household purposes, and that they are not known as toys in the trade.

'(5) If you find that there is no trade designation of these articles as toys, then the question becomes purely and simply one of fact, viz. what is the predominating use to which these articles are devoted? And, if you believe that they are not chiefly used as playthings for children, then your verdict should be for the defendant.

'(6) If you believe that the articles in question are brought and sold under the names of a cup, saucer, and plate, and not under the name of toys, then your verdict should be for the defendant.

'(7) A 'toy' is an article used exclusively for the amusement of children; and, if you believe that the articles in question are chiefly used by children otherwise than as playthings, then they are not toys, within the meaning of the tariff act, and your verdict should be for the defendant; provided the word 'toys' has no special trade meaning.

'(8) Upon the evidence in this case, the term 'toys' should not be given any technical or particular or commercial meaning, but should receive its proper signification and natural import; and if the articles in question are not 'toys' in the popular and general sense of the term, but are used for ordinary household purposes, like other articles of earthenware, and if such use is predominating, and not exceptional, then your verdict should be for the defendant.'

The court gave all those instructions except the third; declined to give the third, because, 'if they were denominated toys by the trade at that time, then it is unimportant how they were used;' and instructed the jury that all the subsequent instructions were predicated upon the idea that the jury 'do not find this term 'toy' to have a trade signification.' To this instruction, as well as to the refusal to give the third instruction requested, the defendant excepted.

The court further instructed the jury that the signification of the term 'toys,' in common speech, embraces only such things as are primarily intended for the entertainment and amusement of children; that 'the term 'toys,' used in the statute, is to receive the signification ordinarily attributed to it in common speech, unless the evidence shows it has a different trade signification,-that is, that it is differently used and understood when applied to such merchandise by those engaged in commerce respecting it,-and had such different signification at the date of the statute in 1883;' that, if it had such different signification in trade and commerce, the statute must be understood as using the term in that sense; that the evidence seemed to put beyond doubt that the term had a well-understood trade signification, inasmuch as the witnesses on both sides testified that at and before the date of the statute it was in common use among those engaged in this branch of commerce, and differed only as respected the scope of its application; and concluded the instructions to the jury as follows: 'If you find that the term in question has a wellknown trade signification, (had at the date of the statute,) and that these articles fall within it, your verdict must be for the plaintiff, no matter whether the trade designation seems to you to be reasonable or not. If you do not so find, your verdict must be for the defendant.'

To those passages of the instructions given which are above printed in quotation marks the defendant excepted, and, after verdict and judgment for the plaintiffs, sued out this writ of error.

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

Frank P. Pritchard, for defendants in error.

Mr. Justice GRAY, after stating the facts in the foregoing language, delivered the opinion of the court.