having become impossible by the act of the obligors, the bond has becor.UQisibgle ,and unconditional, and plaintiff may recover the damages actually due them upon it. question is one of damages. After failure to obtain construction of the works by defendants' firm, the city again advertised forbids for precisely the same work, received an offer from another firm at a larger price than that which they, had to pay Moffett, Hodgkins &.Clarke, and, having accepted the ofter, entered into a new contract with such firm. Plaintiff asks to be allowed as damages the difference;in cost to it between the two contracts. This, at least, it is entitled to. The difference, being mere matter of computation, will be referred to a master, his report to ,be subject to exceptions, etc. Let such:anorder be entered.
(Circuit CtYlJ,f't, S. D. New, York-January 8,tS99.).
, "A' prOtest,' against appraIsements tnalie of imported merohandill'e in accordance
2911, :El.ev. SJ;, :Uj ,S., raises, ,within the meaning of section 15, of the ad· minilltrative customs of ,rune 10, 1890, (26 St. p. 131,) a que,etlon as to the con· struction of the law and'the faots resi!ecting the classification of such merchandise, and the rate of duty imposed tl!ereonundel' such, classiftC$tion. :.,
., " " . "
n1rr:r1l!R-AriMlIUST1l"lTIVE CUSTOMS ACT OF JUNE
SAME-ltEPE,lL OF STATUTE..
SectiOn 2911 1 Rev. St., was' not rapealed by section 10 of the administrativecu,. ,toms act, but 1S still in force. ' ,,'.' ",
D.uringSeptember, 1890, Schefer, Schramm & Vogel imported from a foreign into the United States at the portol New York certain merchandise consisting of cotton hosiery and skirts of similar kind, but quaUty I and charged at an average price. The local appraiser at that port, in appraising the value of this merchandise, applied theprincJple,laid down in section 2911, Rev. St. U.S., which reads as foUo,ws:, "Whenever articles composed wholly or in part of wool or cotton, of similar kind; but different quality, are found 'in the same package, charged at an average it shall be the dnty of the appraisers to adopt the value of the best article ,contained in such package, and so charged 8S the average value ot the whole."', ' , ' ., Within the time specified in section 13 of the administrative customs act of June 10, 1890, (26 St. U. S. p. 131, c. 407,) the importers gave notice in wldting to the collector of that port of their dissatisfaction with the made by the local appraiser, and, pursuant to the directions I;)f the collector, a reappraisement was made by one of theUniwd who sustained the decision of the localapStates praiser in: appraising the value as aforesaid. Thereafter the importers
IN RE BCHEFER;·
duly gave notice in writing of their dissatisfaction with this reappraisement to the collector, wtJo thereupon transmitted the invoice of the merchandise in question, and all the papers appertaining thereto, to a board of three United States general appraisers, who, after an examination of the case, decided the value appraised as aforesaid was the dutiable value according to law. Upon this value, the collector then levied and exacted duties at the rate prescribed by law on the merchandise in question. Within 10 days after the exaction of these duties, as prescribed in section 14 of the administrative customs act, the importers duly protested, as follows: "We claim that the said merchandise is not dutiable under section 2911 of the Revised Statutes, under which section the said goods have been classified for duty, but that the same are dutiable only under those provisions of existing laws which require that all goods subject to ad valorem dutyllhall be appraised and reappraised according to the actual market value andwholesale price of the merchandise at the time of exportation to the united States in the principal markets of the country'\vhence the same ha'-e been imported. Weclaim that the general appraiser whO first appraised said goods, and the board of general appraisers who afterwards reappraised said goodson appeal, instead of reap.praising them according to said actual market value or in principal markets of the. country .of exportation, reappraised the same accord_ ing to the prOVisions of section 2911 of the Revised Statutes, which is now, and has long been, obsolete. it having been a portion of the tariff act of 1832, Which was repealpd by the later acts of and others following the same up to the present time. .We claim tbatsaid reappraisers, discovering the fact that said merchandise was composed in part of cotton or wool. charged at an average price, supposed that it was their duty to aOopt the valne of the best articlecolltained in each package. andso cha.rged. as the average value of the whole, thus classifying. the goods as subject to a section or provision of Revised Statutes long sInce obsolete.i , .
P. Ketchum, for importers, contended: (1) That section lOot tneadministrative. customs :act provided that. it should. be thedutyof the. appraisers, by all reasonable ways and means in their power, to ascertain, estimate, and appraise (any invoice or allidavit thereto9r to the contrary notWithstanding) the actual marKet value and wholesale price, etc., oithe mel"chandisein suit. (2) That section 19 of the same act provi4ed that duty should be assessed ·upon the actual market value or wholesale price of said. merchandise. (3) :That the appraisement under section 2911, Rev. St., of the merchandise in suit, obtained a higher value than, sucllmarket value or wholesale price, and II duty exacted on the higher value so ;was grtlate.r than the duty would have been if exacted on such market _value or wholesale price. (4) That section291l, Rev. 8t., therefore, was inconSIstent with said section 10, and was, under section 29 of the administrative cus-toms act, repealed thereby. .
, Edward M''lkhell, U. S. Atty., and Thoma8 (freenwood, Asst. fOfcollector, contended: . ., (1) That section 15 of the customs act, having given the court jurisdiction only as to classification of merchandise and the rate of duty imposed thereon, and there being no question raised or capable of being raised in this case as to classification or rate of duty by the protest or by the facts before the court, the court had no jurisdiction of this case, involving. as it did, only the appraiseme'lt of value heretofore determined. and by section 13
of the same act made flnaland conclusive·· (2) That seotion 2911, Rev. St., which, under section 5595,Rev. st.· W8S r.ertainJY the law of the,land after the passage of the Revised Stiltlltes until the passllge of the administrative customs act, WRS omitted from' the list of sections of the Revised Statutes specifically enumerated In section 29 thereof as repealed by th.at act, and was, therefore. not repealed or intended' to be repealed.: (8) That sectionl0 oftha administrative customs8ctwllS' a re-enactment, without change of meaning, of section 2902, Rev. St. . (4) That section 2911, Rev. St., evidently WIIS, as to the kind of m,erchandise in suit, in the nature of an exception to section 2902, Rev. St., and these two sections, so construel!, were tirelyconsistent. (5) That said section 10 and section 2911, Rev. St., were to be construed in the same manner as sections 2902 and 2911, Rev. st., and that. section 2911, Rev. St., was not, therefore, inconsistent with said section 10, alid was not repealed by it. Judge.. The first point is as to whether the protest question as to the effect .of sectio11 2911 of the Revised Statutes. Section 159f the administrative customllBct, as to appeals to the circuit court,provides that if the importer, consignee, oragent for the importer, or the collector, or secretary shall be with the decision of the board of generalappraisera, as provided for in section 14 of this act, as to the construction of the law llnd the facts respecting the classification of sucpmerchllndise, a11d the rate of duty imposed under such cation, they, or either of them, may, within 30 next after such decision, appeal to the circuit court of the United States. This question, under section 2911, Rev. St., would directly relate to the duty imposed there, and to a decision under the law and the facts respecting that; so the questioJ1 would seern to be raised by this protest. The question as to whether section 2911 is still in force and can be carried out rests upon whether it is consistent with, and can be carried out with, the provisions of section 10 of the administrative customs act. I think itean be, because section 2911 merely provides what sample is to be taken for appraisal, the same as the section as to ,sending one parcel in ten or one case in ten to: ba examined. It merely provides what shall be taken for examination, instead of taking an average of the goods the same of ditferentvalues, mixed together. When that sample is taken, then all the other provisions of the law are to be followed as to that. I think the intentioD'.ofcthe la.w was that the appraisals should not be made on an average,but should be of a definite thing, a sample, the best in the lot, td' begQpe by. Section 2911 and section 2902 stood in the Revised Statutes tQgetller, and could be enforced together; and there is no inore difference between section 2911 and section 10 of the administrative customs act, ip these respects, than there was between section 2911 and seetion' 2902!of the Revised Statutes. 'fhey can stand together in either case, and be enforced. The decision of the board of general appraisers is thereforeaflirmed.
(CUCUU C0'IJI1t,8. D. New York. January 20, 1899.)
CuSTOMS DUTIES-ACT OJ' :MARCH
8, 1888-TAllLE MIRRORS. ' Table mirrors, known as "mirror plateaus" or "circles," made of plate gl88ll, silvered, beveled, and framed, in circular form, held not to be dutiable at 41> per cent. ad valorem, under Bchecjule B, par. 143, as a "manufacture of glass, or of which glass shall be the component ,material of ahief value, .. etc., bl.t dutiable at a .square-foot duty according to measurement, under parag'raph 141, and at an ad· ditional duty of 30 per cellt. (1(J valorem for their ,frames,under paragraph 142 of said schedule and act. .'
At Law. Appeal by importers from decision of board of United States general appraisers under section 15 of the act of June 10, 1890; Maddock & Steel (importers) imported per steamer Cufic, on July 8, 1890, and per Runic, July 23, 1890, eertain mirror plateaus or table mirrors, which were reported by the assistant appraiser to be disks of plate-glass, silvered, from 6 to 16 inches in diameter, and set into a metal base, with feet, intended to be used on dining-tables' for holding fruit, and for flower-stands. The collector assessed duty thereon at 45 per (lent. ad valorem, as "manufactures of glass," under paragraph 143 of Sehedule B of the tariff act of Mll.rch 3,1883. The importers protested, claiming the same to be dutia:ble as "cast, polished plate-glass, silvered, or looking-glass plates," according to their measurement by the square foot, with 80 per centum ad 'l1alorem added for their frames, according to the provisiQns of paragraphs 141 and 142 of said schedule and act. The importers duly appealed to the board of United States general appraisers, under the provisions of the act of June 10. 1890. The board of general appraisers, on March 4, 1891, affirmed the decision of the cqllector. An appeal was thereupon taken by the importers to the United States circuit court from the decision of the board. The return of the board was filed in the United States circuit court on May 15, 1891. Additional or further evidence was taken before one of the members of said board, as an officer of the court, under an order of the court entered June 1, 1891, by which it appeared that the articles in suit were mirrors, commonly known in trade as "plateaus," "mirror plateaus," or 4I circIes." Samples of the merchandise were also put in evidence and produced in court. Edward M'!tcheU, U. S. Atty., aud Henry C. Platt. Asst. U. S. Atty., for collector. Edward Hartley, for importers.
WHEELER, District Judge. Paragraph 141 of the tariff act of 1883 provides for a duty on "cast, polished plate-glass, silvered, or lookingglass plates, not exceeding ten by fifteen inches square, four cents per ,square foot," etc., increasing the duty by the square foot, as they are made larger. Paragraph 142 provides: "But no looking-glass plates or plate-glass, silvered. when framed. shall pay a lell8.Ji"ate of duty than that imposed upon similar glass of llke descrip.
tion not framed, but shall be liable to pay, in addition thereto, thirty per centum ad valorem upon such
Paragraph 143 imposes a duty upon"Porcelain aDd Bohemian glass, chemical glassware, painted glassware. stained glass, and all other manufactures of glass. or of which glass shall be the com;-. ponent material of chief value. not speciaIlj' enumerated or provided for in this'sct; forty-five per centum ad valo1'em." ' ..
,This importation is of circular, cast, polished plate-glass plates. silvered t beveled, and framed. It has been assessed as a manufacture of glass. ,Or of which glass is the component material of chief value, at 45 per centum ad valorem. The protest raises the question as to whether it it that paragraph or under paragraph 141. The record shows that. these are used sometimes for table ornaments, and called, i'ph:lteaus." They also may be used for looking-glasses. The caseJsjtrgued asH the clause "polished plate-glass, silvered, or lookingglass plates," of paragrll:ph 141, applies only to looking-glasses. But paragraph 140 provides a duty on "cast, polishe\l plate-glass, unsilvered, not exceeding ten by fifteen inches square, three cents per square foot," etc. That shows that cast, polished plate-glass mayor may not be madeinto looking-glass plates. It may be unsilvered or silvered, or it maybe looking-glass plates. These are, for certain purposes, looking-glass plates, but they come within the exact. description of "cast, polished, plate-glass. silvered," of paragraph 141; and also they Bre "framea," within paragraph 142. They are, therefore, "manufactures of glasstprovided for in this R<;:t, and npt "manufactures of glass, or of which shall be .component matl'irial of chief value," not prOo! foJ'. "They shouldJ)e assessed under paragraphs 141 and 142, and not under paragraph 143. oLthe bOard of' United States appraisers is reversed.
(Cirtmit cO'Ut't,S. D. New
.January 11, 1S92.)
CUSTOMS, DUTIBS-'ACT Oil' MARGH S, 18S3-BourING CLOTH.
" Bolting cloth, made of silk and cotton, silk chief value, used for other than mllling purposes, is not dutiable at 50 per cent. ad 'Valorem, as a manufacture of silk, under paragraph 383 of Schedule L of the tariff act of :March 3, 1883, but is free ot duty. under paragraph 657 of the free-list of said act.
At Law. Appeal by itnporters from decision of board of United States appraisers,undersection 15 ofthe act of June 10.1890. . & Hennings imported by the steamers Burgoyne, July 29, 1890, and La Normandie, August 20,1890, certain "bolting cloth," which Wll,S returned by tQelJ.ppraiser upon, the invoice as a Illanufacture of silk. and cotton,silkchief value, upon which the collector' assessed