Herrman v. Robertson

This was an action by Henry Herrman, Charles Sternbach, and Abraham Herrman against William H. Robertson, collector of the port of New York, to recover duties paid. The circuit court directed a verdict for defendant. 41 Fed. 881. To review the judgment entered thereon, plaintiffs bring error.

Action to recover duties paid under protest. Trial by jury, and bill of exceptions as follows:

'This action was brought to recover the difference in duty between 35 per cent. ad valorem and various higher rates of duty assessed and paid upon certain goods imported by plaintiffs at the port of New York in the year 1881.

'Duties were paid to defendant under protest as follows: Against defendant's liquidation claiming: 'The goods in question are liquidated by you as being liable to a duty of 50 cents per pound and 35 per cent. ad val.

"We claim the goods are composed of hair and cotton only, and as such should pay a duty of 35 per cent. ad val. as a nonenumerated article, under the second half of section 2499, Rev. St., being the highest rate of duty which any of the component material pays.'

'Plaintiffs thereafter, in due time, appealed, and brought this suit.

'Further, to maintain the issues on their part, plaintiffs introduced samples of the goods in question, and evidence tending to show from an analysis their component material to be calf hair and cotton exclusively. Among other evidence on this point a report as to these samples from Prof. Torrey, an expert witness, was verified by him, and on this point was as follows:

"The sample marked 'C 386' by the Republic, August 12, 1887, found to contain 87.4 calf hair and 12.6 cotton by weight.

"The next sample, '292,' Arizona, Aug. 20, 1887, 86.6 calf hair and 13.4 cotton.

"Sample 760, Alaska, Dec. 1887, 88.5 calf hair and 11.5 cotton.

"H. T. 2,680, 85.6 calf hair and 14.4 cotton.

"H. T. 2,759, 86.1 calf hair and 13.9 cotton.

"The above samples were all composed of calf hair and cotton, with no admixture of wool that could be detected by the aid of the microscope.

"(Signed H. G. Torrey, government examiner of textile fabrics.)'

"There was no admixture of wool in the goods.

'It further appeared that the goods in question were a low grade of calf-hair goods.

'It further appeared that they cost less than forty cents per pound, the foreign value per running yard being from one shilling and ten pence to two pence.

'Plaintiffs having rested, counsel for defendant, without introducing any evidence, moved the court to direct a verdict for the defendant, which motion was granted, and the counsel for the plaintiffs then and there duly excepted; and the exception was allowed.'

The verdict having been returned as directed, and judgment been entered thereon, plaintiffs brought the case to this court on writ of error.

Edwin B. Smith, for plaintiffs in error.

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 court: