SMITHERS 1'. JUNKER.
(Circuit Court, N. D. IlHnois. December, 1889.)
A note reciting: "For value received I promise to pay to S. F. Smithers $2,048.25, payable Bot my convenience, and upon this express condition, that I am to be the sole judge of such convenience and time of payment, "-does not contemplate that the money shall become due only at the pleasure of the maker, without regard to lapse of time or the rights of the payee, but that maker is to have a reaSonable time, to be determined by himself, in which to pay the note.
NOTES-TIME OF PAYMENT.
At Law. On demurrer to declaration. B. W. Wilson, for plaintiff. Harve;y H. Anderson, for defendant.
GRESHAM, J. The first, second, and third counts are upon a written instrument, which is set out aEl follows: "CHICAGO, November 1, 1883. "For value received I promise to pay to S. F. Smithers two thousand and forty-eight and 25-100 dollars, payable at my convenience, and upon this express condition, that I am to be the sole judge of such convenience and tiwe of payment. A. JUXKER."
It is averred that, after a reasonable time had elapsed, the plaintiff demanded payment, which was refused by the defendant.1'he defendant's promise was to pay the money in consideration of something of value received from the plaintiff. If what the defendant received was a mere gift, and it was not contemplated by the parties that the instrument was to be a binding obligation, why was it executed? Its execution is evidence that the plaintiff expected an equivalent for What the defendant received, and that the Jattp.r understood he was bound to pay the sum of.money specified, not immediately or on any certain day, but within a reasonable time, to be determined by himself. It was not con· templated, however, that the money should become due only at the pleasure of the defendant, without regard to lapse of time or the rights of the plaintiff. The beginning of the instrument imports an obligation to pay a specific sum of money, and the succeeding language should not be construed to destroy that obligation. If the defendant was given the sale right to say when it would suit his convenience to pay the debt, he might decide that he would never pay it, which would not be a reasonable or honest exercise of his judgment as to time of payment. The instrument was executed on November 1, 1883, and after the lapse of more than five years payment was demanded and the debt became due. Such contracts should be construed liberally, in favor of payees. Lewis v. Tipton, 10 Ohio St. 88; Works v. Hershey, 35 Iowa, 84U; Ramot v. Sclwtenfels, 15 Iowa, 457; Kincaidv. Higgirl.3 1 1 Bibb, 396. Demurrer overruled.
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(01n'outt Oowrt"S. D., New ¥ork. Janna'17,18?Q.)
'L CUSTOMS DUTIES-F'REE-LIST-HORN STRIPS.
!,olisbed born strips, ready and completed for UJe as bones or stays for ladtes' COtsets ok-dresses, are free of duty, ,under paragraph 518 of section 2503, Rev. St, U. Sl,(Free-List.) The commeroialdesignatioli is the first and most imp6rtant designation to be ascertained in ilettling the mea,ning andapplieation of tbe tariff laws.
,9. Snl:B,;-CONSTRuortoN OF AOT-COMMEROIAL DESIGNATION.
At Law. This was an action against the 'collector ofthe port dfNew York to recover duties alleged to have been in excess of the lawful duty. The plaintiffs on May 27, 1889, iri\.potted cartain merchimdise, consist· of pieces of horn of .cattle, cut into strips, polished and ready Jforuse as bones or stays for 'ladies' corsets and 'dresses. The collector classified the merchandise as manUfactures of hOrri,under Schedule N ofthetariffact of 1883, (Tariff Index, 399,) at 30 per centum ad valorem. ;The plaintiffs protested, and claimed that by virtue 'of the provision in the free-list of said actthe merchandise was exempt from duty as" horn 'strips." Upon the trial it was shown that the horns were cut from cattle in: India, brought from there to Paris, and split lengthwise. The solid tip: of the horn was; cutoff. Then the horn is soaked, and ll-fterwardsput into an hydraulic steam-press, with a steel plate between each layer, and ,pressed down and flattened. Then they are planed into strips ofvariouB, lengths, and ,out into uniform lengthsjthen they are l!oSsorted,some of them scraped smooth, others polished, some allowed to remain with the end perfectly square, and others are rounded off, and holes punched in the ends. As a,matter of fact, the merchandise was a mauufa:cture of horn, but it was shown by the testimony of many trade witnesses that the merchandise in any and all of the conditions above mentioned, after being stripped from the horn, WM known in the trade and commerce of this country at and prior to the passage of the tariff act of March 3, 1883, as "horn strips." The clause of the free-list (seotion 2503. Rev. St. U. S.) reads as follows, (Tariff Index, 513:) "Horns and parts of. horns, unmanufactured, and horn strips and tips, (free.)" At the close of the testimony, the counsel for the defendant moved for a direction of a verdict on the grounds (1) that the plaintiffs had not proven facts suflicientto entitle them, totecoverj and (2) that, under a proper construction of paragraph 513 of section 2503 of the United States Revised Statutes! only unmanufactured articles were intended by congress to be included therein, and the uncontradicted evidence in the case tended to show, that the merchandise in suit, by whatever name they might'be called, were in fact ml\nufactures of horn. Counsel for plaintiffs also mo.ved fora,directiou of a verdict on, the ground that the articles in suit were commercially known as "horn strips," whether manufactured:'or ,not, and were included in the language of paragraph 513 of the free-list. Q)ursen Q)uTsen, for plaintiffs.