procedure in statE). It then pleads specially the following facts, in substance: That the contract in question on which plaintiff sues was for 475;000 pounds of beef, at the price of $3.50 per hundred on the hoot',""";'a deduction of 20 per cent., however, to be made from such price, in paying for all cows delivered; that plaintiff and the defenjant alike understood such to be the contract; that the cattle delivered under the contract were accepted and paid for in pursuance of such understanding; that plaintiff accepted the payment so made, in full satisfaction and discharge of all claims under said contract; but that in drafting the agreement the clause with reference to deducting 20 per cent. of the stipulated price in paying for cows was accidentally omitted, and that the omission was not discovt>red till long after the contract was made. 'rhere is a motion to strike out the special plea, on the ground that it is a:n equitable defense nQt permissible in a suit at law.· I am satisfied that the motion not.to prevail. 1. 'l'he matter pleaded, in my judgment, is not exclusively an equita.ble. defense. It is averred in the plea that plaintiff has accepted a certain stim, in full and of all claims under the. contract sued on. This is a legal defense, and, even in this aspect, it was probably thought necessary.to allege and prove that there was a mistake in drafting the contract from which a controversy might arise, as otherwise it might not appear that there was any consideration for accepting, by· way of satisfaction and discharge of all claims under the contract, a less sum than appeared tobe due according to its provisions, as the same had been erroneously written. Treating the plea as one of accord and satisfaction, and hence as a legal defense, it appears to the court that the allegation as to the mistake made in drafting the contract is a proper and necessary allegation. 2. But I am unwil1ing to admit that such a defense may not be made to a suitat law on the ·contract, even conceding it to be of an equitable nature. The government pleads that a mistake was made in drafting the contract,not as the basis of any affirmative relief sought, but purely by way of defense, and in negation of the right asserted by the plaintiff. In this state an equitable defense, made under such circumstances, is allowable in a suit at law. Smith v. Canning 00., 14 Mo. App. 522, and cases cited. Nothing is tobe gained, it would seem, by forcing the defendant to file a bill for the reformation of the contract, and for an injunction to stay the action at law until the suit for reformation is concluded. The question as to whether either party will be subjected to a different form. of trial than they are entitled to, is not even involved in this case, as, in any event, the suit being under the act of March 3, 1887, the issue of factniust be tried by the court. 1 am satisfied that the motlonis n,ot well taken, and it is accordingly overruled, with leaveto file. a reply.
Fox et al. v.
(CCrcuit OouTt, E. D. Penmytmnia. October 10, 1889.)
CuSTOMS DUTIBS INSTRUMENTS.
CONSTRUCTION OJ' ACTS -
COMMERCIAL TBRMS -
Where descriptive words used in the tariff acts are commercial terms, they are to be construed in the sense in which they are nsed in commerce; and If at the time of the passage of the act of 18$3 there was a class of articles defined and well known in th,e branch of commerce to which they belonged as philosophicM instruments, all articles within that class are dutiable under the trade name, as in said act·
Ifthedesignatlon "philosophical apparatus and instruments" is not a trooe term, then it is to be construed a,ccording' to the meaning ordinarily given to the words in common speech, and in that sense it includes not merely such instruments as are used in purely scientific investigation or instruction, but all instruments designed to illustrate or utilize certain laws of natural philosophy, and which require for their design or their manufacture or their use some special knOWledge of those lawa. " Disks of glass known as "spectacle lenses," whiLll have been ground or polished fOT use in spectacles, and which only require to be cut and fitted to the frame, are DOt exempt from duty as "plates or disks of glass uDwrought, for use in the manufacture of optical instruments," but are dutiable as "articles of i:lass cut, engraved, " etc. Small rectangular pieces of common window glass, used for microscope slides, are dut,iable as "common window glass, not exceeding ten by fifteenincheslquare. " and not as "articles of glass cut, tt etc.
At Law. This was an action brought by an importer to recover an alleged excess of duty imposed by the collector. The plaintiffs imported the following articles, which they claimed to be dutiable as "philosophical apparatus and instruments," and which the government claimed to be dutiable as manufactures composed wholly or in part of iron, steel, copper, etc., viz., (1) dynamos, dynamometers, ammeters, volt-meters, milliamperes, and amperemeters; (2) surveying aneroids; (3)clinical thermometersj(4) spy glasses, marine glasses, binoculars, and opera glasses; (5) achromatic lenses, rectilinear lenses, projection lenses, railroad lenses, photographic lenses, and loupes richaud. Plaintiffs also imported glass diskfl known as "spectacle lenses." These disks had been ground or pol. ished for use in spectacles, but required to be cut and fitted to the frame before forming part of the finished spectacle. Plaintiffs claimed that these were exempt from duty under the provision in the free list for "glass plates or disks unwrought, for use in the manufacture of optical instruments." The collector claimed that they were dutiable as "articles of glass cut," etc. Plaintiffs also imported small rectangular pieces of common window glass used as microscopic slides. The glass had no. been subjected to any other process of manufacture than the cutting into sizes. Plaintiffs claim that the articles were dutiable as "common window glass, not exceeding ten by fifteen inches square;" The collector contended that they were dutiable as "articles of glass cut," etc. As ta the articles claimed to be philosophical instruments considerable evidence given on both sides on the question whether the term was a v.42i'.no.3-14