idence,agaip.st the plaintiff,-appare:ntly entitled to some weight in deciding the 'question before us. Again, when the examiner was requested to make a .second. examination, a full and particular examination, he reported after some time had elapsed, effect that was not clothing wool,......in terms, that it was "combing wool,"-which belongs to the second class, and it was not till the appraiser demurred to this, by declining to indorse, that the examiner placed it in the first class. The fact that the examiner, ,after a sec()nd and presumably very careful examination, found it to be "combing wool," seems to be inconsistent with the testimony of the plaintiff's witnesses, who say that it plainly and distinctly appears to be "clothing wool," from inspection nlone,-such as they gave it in your presence. It is for you to say what weight these facts should; hay6.· Nevertheless, the questiQn whether this is" Smyrna wool," and consequently "carpet wool," is a question for you],' determination, from all the evidence in the cause bearing upon, it. If you find it is "Smyrna wool," your verdict will be for defendant, because if it is "Smyrna wool" it is carpet wool, and belongs to the third class. If you do not so find, your verdict will be for the plaintiff.
et al. ti.
(Vircuf.t Court, S. D. NeJW YorK. April 29,1890.)
The term "finished," as applied to house or cabinet furniture at and prior to the passage of the tariff act of March 8,1888, (22 U. S. St. 488,) in .the furniture trade of this country, was used to designate not only house or cabinet furniture that was in pieces fitted so that they could be put together, and made ready for use as SUCh furniture, but also house or cabinet furniture that was actually put together, and . made ready for use as such furniture when shellaced or varnished or painted or painted anll varnished, etc. 9. SAME-lHJRNITURE NOT FINISHED. The house or cabinet furniture dutiable under the provision for "house or cabinet furniturejn piece or rough, and not finished, "contained in Schedule D of this tariJf act, (TariJf Index, New, 229,) is house or cabinet furniture not only "in piece or rough," but also "not finished. " . 8. SAME. Cabin,et ware and house furniture, whether in pieces fitted so that they can be put together and made ready for use, or actually put tpgether and made ready for use, as suoh furniture, if "finished," is dutiable under the provision for "cabinet ware and house furniture, finished," contained in said SchedUle D, (TariJf Index, New, 280,) and not under the provision for" house or oabinet furniture in pieoe or rough, and not finished," contained in the same schedule, (Id. 229.)
CU8TOMllDUTIIlB-CoN8TRUCTION OI!'LAWS-CLASSIYIOATION-FI:NISHED FuRNITURE.
At Law. Action to recover back duties. During the year 1886 the plaintiffs imported from Vienna, Austria, into the ,port of New York, certain Austrian bent-wood furniture in pieoes; This furniture was .classified for duty under the provision for "cabinet. warE1 and house furniture, finished," contained in schedule D of the tariff act of 1883, (Tariff Index,New, 230j) and duty was exacted
RICHARD fl. HEDDEN.
thereon at the rate of 35 per centum ad valorem by the defendant as col· a.nd exaction lector of customs at that port. Against the plaintiffs duly protested, claiming that this furniture was "in pieces, and not finished," and therefore dutiable at the rate of 30 per cent. ad valorem under the provision for "house or cabinet furniture in piece or rough, and. not finished," contained in the same schedule. Id. 229. The plaintiffs thereafter, having made due appeals, brought this anit to recover the difference between duties at the rate of 35 pel" cent. ad valorem as exacted by the defendant as said collector, and duties at the rate of 30 per cent. ad valorem as claimed in their protest. , Upon the trial, it appeared from the evidence profiuced by the plaintiffs that this furniture, though in pieces, consisted of ,all the parts of chairs, settees, tables, and other varieties of house furniture, including the backs, seats, and one or more other portions thereof, that were each put togetser in permanent form; that each of these parts was completely. shaped, smoothed, and fitted to go together without further.work thereon, was polished and varnished, or polished, painted, and varnished, hil4 the usual boles therein for necessary screws and bolts used in fastening necessary screws these parts together, and wa.s accompanied with all and bolts, so that all these parts were ready to be put together and fastened so as to constitute completed chairs, settees, tables, and other varieties of house furniture, as used by everybody, the putting together and fastening only remaining to be done; that these parts, in the condition described, together with the aforesaid screws and bolts, as imported, were wrapped with or packed in straw or paper, and placed in boxes or placed for convenience cases; that. they were so wrapped or packed of transportation, and toaave, as far M posSible, the expense of freight; , that after their importation the only thing done to them besides together, and fastening them so as to constitute completed chairs, settees" tables, and other varieties of house furniture, as used by everybody, was to touch up the ends of the aforesaid screws and bolts, paint or varnish them, in order to make them match such furniture, unless the woodwork had been jammed or crushed or bruised, and, if it had been, then the wood-work was touched up where jammed or crushed or bruised, but otherwise the wood-work was not touched; that the difference between the price at which this furniture was sold when sold as imported from Austria, and the price at which it was sold when put to.gether and fastened so as to be ready for use" was about 3 per cent. of the wholesale price as sold in this country. It appeared from the evidence produced by the defendant: That at and prior to the passage of the aforesaid tariff act, in the furniture trade of this country, furniture like plaintiffs, after the parts thereof were made and fitted, was put together and fastened, shellaced, or varnished, or painted, or painted and varnished, etc., then. generally taken to pieces, and afterwards packed for shipment in boxes. or cases in the manner in which plaintiffs' was when imported. That at those times, in that trade, each of the terms "set Upj" " knocked down," "finished," "finished set up," "finished knocked down," and "finished. wd boxed"" as applied to furniture, had a particulatand specifio trade v.42F.no.12-43
FEDER.AL REPORTER l
' . >..:
!urnit1lre meant furniture whose parts, been' fitted, put together, and fastened .so that it was in. th,e form iIi wHich ordinary ftitniturewas used. "Knocked down"furnitu're meant furniture that had been Set up, and then taken to pieces again. "Finished"furn:i.ture meant furniture that had received a shellac or varnish or paitlt,or paint and etc., after having, been set. up, but did notineancompleted furniture. "Finished set up" furniture meant set up that, had be,en finished, such as plaintiffs' wquldpe if set up. "Finished 'knocked down II" furniture meant furniture that had been set up, fblished, and then dmyll,such as plaintiffs' was when taken from, the. boxes orcll:ses in which 'it was imported; and "finished and that had been setup, finished, knocked dowP, ',wrapped with orpa.cked in straw .or paper, and placed in boxes as plllintiffs' ",as when imported. That in the furniture those times the in the rough" meant furniture "intne}Vood," i. e'.',hot finished. ,'J.'llltt the phrase ','in,' p, a,',t. wa,s, n"ot ,' U!l7d b,y that 'WIth a. trade o'rtecJlmcal meanmg. Bqth, slde!l.haVll)g rested, moved the court to direct the jury find a verdict in tIl.Yor;' and 'coullsel' for defendant made a' Inotionfora llk:e direc: "", ' tion 'bthis·favor. court ,denied ,Ed'qJi»/ B. Smith, StijJkn' G. marke, and Albert Comstock, for plaintiffs. Eilioo,'rCl,Mi#heU, Atty., and Thomas Greenwood, Asst. U. S. Atty.t fot' defendant. . , ', '
J., classified the articles in suit un· der',the230th paragraph'ofthetarif;f S;ct as "cabinet w\U'e and house, furand la.id;upon them duty of 35 per centum ad va,lorem., The plaintfffs claim thatstwh c1asliiqca#on was wrong, and that it have been' held dutiable at.pQ per centum ad valorem, ullder paragrl1ph 229,t which "House or furniture in piece,or rough, and not fin-, ished." 9fcourse the is thl:l.t the collecto,"'s d,E)cisimlwasright t in thea.bsenceof any tellti'in'ony. ,Therefore, in all these actiqns to recover is for the by' 'a prepopderance of proof, to the Jury that the collectorwasln error lU IllS assessment. In order to dq SO in this case, inustsatisfy you of two things: (1) That the artfcles'nerearli\ piece" or "rough.", Asto that branch of the'case,t there is no testimony. These articles I:l.re, fU,rpiture in',piece, ,The plaintiffs m further, however, aJ;ld 'satisfy'y0u (2) thattb,ese "furniture piece," are ,"not, finished.. the laws imposing'du.Hes 11pon importations are intended practi¢a,l' use and applt9l:l.tion pymell engased i.o t!ade and arid the particularly in theqen,ominatiol1 of to ,the commercial,un., dElfIltBMipg'pf tpe tEirhlllu,sed. MaDy witnesses frOm fu.rniture trade sft!.ndj and, I think withol;1t an exception, they have been caned to have ,;.,L . , ' that . ,'. '. some particular the word, " ,,,.'
WASHBURN & MOEN MANUF"a CO.
BARBED WIRE F. CO.
"finished,"-that to the furniture trade the word "finished" means something, und that it means something other and .different than it might mean to a. man who was not engaged in that trade. '!tis for you, ,upon the testimony I to determine what that word did meaD I in trade and commerce in this country, on March 3, 1883. Having found out what the trade meiming was, you will then apply that. meaning to these articles. If you reach the conclusion that they were "'not finished," within the trade meanirig of that term,thim your verdict must be for the plaintiffs. Should you reach the conclusion that they were "finished," within the trade meaning of that' word, your verdict will be the defendant. The jury tendered a verdict for the defendant.
Co. ";' CINCINNM'I' BARBED Co.
(Circuit CQurt, 8. D. Ohio,
June 20, 1890.)
P.TBNTB INVENTIONS-AsSIGNMENT AND LIOENSE-SUIT FOB ROYALTIES-PLEADING. A patentee who grants a license to manufacture and sell tjJ.e patented article, under a contract bY' which the licensee is to make monthly reports, and pay...a stipulated royalty, and for failure to comply with which the licensor may declare a forfeiture, cannot sue in equity to compel the licensee to make reports and account for royalties due, or, on his failure to do so, to enjoin 'I\.im from further manufacture or sale,. By sucll prayer, he waives the f!lrfeiture clause, and is left t!l his aotion at law for the royalties.
In Equity. On demurrer. Lehroo/nn & Parks, for complainant. James Moore, for defendant.
SAGE, J. The bill sets forth that the complainant is the owner of certain patents relating to barbed wire, and machinery for making the same; that the defendant is its licensee, engaged in making and selling barbed wire under the license,which provides that the defendant shall make monthly reports of its manufacture and sales, and pay the stipulated royalty thereon; and that, for failure to comply with the provhlions of the license, the complainant may declare a forfeiture. The bill further sets forth that many licenses have been granted by the complainant upon like terms with that of the defendant, all for the manufacture and sale of a limited quantity per annum of specified styles of wire; that for the proper maintenance of its business, and of the rights of the seveml licensees, monthly reports are necessary; that defendant promised, by its acceptance of the licehse, to co-operate with complainant in tainingthe license system; thl1t it has failed to keep its agreement, and is engaged in making and selling barbed wire under the license without making monthly reports, or paying royalty. The prayer is that the fendant· be decreed to perform its agreement; that an account be had of