BERBECKER
v.
ROBERTSON
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Berbecker challenged the tariff classification of brass nails, claiming they should be classified as "gilt nails" under the tariff act of 1883, but the Supreme Court affirmed the lower court's judgment that the evidence failed to establish a definite, uniform, and general commercial usage supporting such classification at the time the tariff act was enacted.
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Mr. Chief Justice Fuller delivered the opinion of the court.
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 sécret chemical solution. "We are not prepared to hold that, under such circumstances, this. paragraph would be applicable, even if nails thus manipulated were commercially designated ¿s “ 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, ante, 368.
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 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 werepalled £ 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.
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Patton v. United States, 159 U.S. 500 (U.S. 1895)…this subject falls far short of establishing a commercial designation applicable to these articles with the certainty, uniformity, and generality required by the decisions of this court. Maddock v. Magone, 152 U. S. 368, 371; Berbecker v. Robertson, 152 U. S. 373, 377; Sonn v. Magone, 159 U. S. 417. In default of such evidence, the term will be presumed to have been used in the tariff act in its ordinary sense of refuse. Swan v. Arthur, 103 U. S. 597; Schmieder v. Barney, 113 U. S. 645. Taking the testimony…
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Smith v. Russell, 76 F.2d 91 (8th Cir. 1935)…the cases are legion, and the test of the duty, while varying slightly in expression, is in effect quite uniform. Ferguson v. Arthur, 117 U. S. 482, 6 S. Ct. 861, 29 L. Ed. 979; Pence v. Langdon, 99 U. S. 578, 25 L. Ed. 420; Berbecker v. Robertson, 152 U. S. 373, 14 S. Ct. 590, 38 L. Ed. 484. No cases are cited to the effect that a federal district court, after sustaining a demurrer to the evidence, or a motion for judgment on the evidence, in a jury-waived case, is required to pass upon and give or refuse…1 / 2
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