IERE HERRMAN;
941
The judgment of the court, therefore, is (that the parties herein charged are guilty of willful cOllteIIl'pt 'in violating the previous' orders of the court, and they are so adjudged. In view of the fact, however, that time has been asked this morning in which to file further answer, attachment will not issue at once, but 10 days will be allowed the partiE1s in whi9h to purge themselves of contempt, if they desire to do so. Contempt, however, being a crirninal action,and personal service being required in each case, :Mr. Deming, being the only individual who has been personally served, is the only one against whom attachment can issue at present.
In re
HERRMAN
et al.
(Circuit Court, 8. D. New Yor".June, 1892.)
·
I.
CuSTOMS DUTIES-CLASSIFIOATION-" ASTRAOBANS...
So-called "astrachans, .. being a woven material consisting of a cotton foundat,iou or weft, and a rough and mqre or less curled pile warp composed of goat hair, in which, in some of the samples, .the loops of the pile were cut and in others remained uncut, the goat hair being the material of chief value, MId, that the merchandise was dutiable as a manufacture in whole or in 'part of goat hair, under Scbed,ule K, par. '892 of the tariff act of October 1, 1890, at the rate of 44 cents a pound and 50 per cent. ad valorem, and uot, as claimed by the collector and the government, as "pile fabrics," under paragraph 396 of the same Bchedule and act, at cents a pound and 60 per cent. ad valorem. .. The fact tllat congress, before framing .the tariff acts, advises with manufacturing experts, does not give rise to any rule of oonstruction whereby words used therein may be interpreted according tt;> the. technical understanding of manufacturers. A word used in a tariff act may be susceptible of a trade meaning as designating a specialgrollp of articles, although each article in the group is always bought and sold by its specific name, Whereby it happens that no articles are bought and sold by the group designation. .
Ja.
SAME-CONSTRUQTION OF, ACTS-UNDERSTAND.ING OF MANUIIA.CTURERB.
S.
SAME-TRADE MEA.NING.
At Law. This was an application by the importers under the provisions of section 15'0£ theM-called" Customs Administrative Act" of June 10, 1890, for a review by the circuit court of the decision of the board :of United States general appraisers affirming the decision of the collector 'Of the port of New York in the classification for customs duties of certain merchandise entered· a.t that port October 27 ,and November 17, 1890, which consisted of goods commonlykuownas "astrachans," or "astra<;han cloth," which were returned by the United States appraiser as "manufactures,goat hair and cottoQ, goat hair chief value, as pile fabrics," and duty was accordingly assessed thereon by the collector at 49, <lents per pound and GO per <,-ent. additional ad valorem, under the proviRions of paragraph 396 of Schedule K of the tariff act of October 1, 1890, which; omitting inlmaterial portions, is as follows: "396. On .. * *' and plushes and other pile fabrics. all the foregoing 'Composed wholly or in parU,fthe hair oithe camel. goat, alpac3,
1'42
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tJle.
!
:\le
,)lalf ,ti " '
the
.
, .. )b,1.thls ,act ,Oll :,a
SlxtJj
uHrr.,I3>,
JOQI valorem," .
class. and.
'ThEi'"importers' protestea being t1lrtllufactures of hair, valqed at: Qver'40 centsperpound'l the rate of 44 cents per'po:unrl and 50 per cent. ad valorem; ullder paragraph 392 6n'FlEfsanie schedule and aet;:wh'ieh;:omittillg! immaterial portions. is as follows: ! .i ' , "392. On * * >I< all of every 'description made wholly or in part of * * * the hair of the camel, goat. alpaca, or other animals, not specially provided for in this act, * * * valued at above forty cents per pound, the duty per pound shl:lBbefonr,times the duty imposed by this act on a pound of un washed wool of the first class, and, in addition thereto, fifty per centum ad valorem." · ': l ' _', , ,', "
, ' I, '.
... "
,
) j'"
.,
'I.
The board of United States general appraisers, sitting at the port of New York. t.ake voluminWls; t,estimonyoffered on behalf of the importers and of the government; the former producing the evidence ofalargenumber?f dealing, at, wholesale in to at ofthe,'tanffaut ofOctq,ber 1',1890, and prIOr theretojthe ul'ile 11 hM):ili trade a,nd. commercEf'lj. iwhlch comprised and, included'onlya·:group.of fabrics such as velvets, 'etc., in 'whichthe 'pile wA$uniformlycutin the process of weaving imdstood erect, the' surface o(tbefabrics, consisting of the ends trade did not ,lDclude. thElastr&chans wlhgh werealwq;ys bought and sold by the'spooific,termofH'airttlachamr," and"werenever included within the group of "pile fabrics" as known to the trade. . Onbehalf:ofthegoverntnent the testimony ofa,number of merchants tehdinK to show and commerce 'in the United States at the time of the passage of the·tariff act there were no fabrics bought and sold in trade by the name or designation of" pile .fabrics;" and there was soma testimony tending ,to show that "pile fabaterm or ,designation' known or used in,·the trade, as ap;plied to any goods. ' On of the collector and the government the 1testimony was furthetprOduced of seyeral manufacturers in the United [States of merchandise identical witbor similar to the plaintiffs'impor,tations,which manUfactl;ll;erS testified ,that in thieir. trade the term" pile ,fa1;)rics," as, technically included the entire class of fabrics which :wer.e woven Withe. pile, namely,; wh(iJl'e the pile threads-usually .the warp thl'eads-were'f1thrown up'1Jfrom. "thewarp; and that, then the the !l pile," 8o-0l:111ed;were either.cut by a system of wires and k'l\ves following the proQ6s$,of weaving" odu ,sotne cases were left uncut, including with them all fahries where' the pile was either cut or uncut, and that nQrditference wbetberthe:pileremained standing straight or was cut or crushed illth", process of finishing. The testimony of these ma.nufa cturers likewise tended to show that, as
-
IN
REHERRMAN.
943
they understood commercial terms as used in the wholesale trade with whichtpey came in' co*tact, "pile fabrics "had no special, or restricted meaning di fferent 'from the technic:tlor common significati<in Of the term as applied to all fabrics having a pile, whether cut or uncut, and whether curled or straight. ; The board of United States general appraisers, in deciding the case, delivered very opinion, going over the question of manufacture, and finding III 'substance, among other things, that the words of the statute, "other pile fabrics," could not refer toplushes, that article being enumerated in paragraph 396, and that, therefore, the words must be taken as descriptively covering fabrics which in some respects differed from, but were akin' or allied to, the only fabric named. The board also cited the definition of" pile fabrics " as given in the Encyclopedia Britannica, which covered looped or uncut pile and cut pile; also' the Century Dictionary definition of "astrachan" as a "rough fauric, with a longj'{jlbsely curled pHein imitation of the furj" and also the definition in Webster'sandWorcester?s Dictionaries of the word "pile." The board further held that the testimony of manufactuters should be admitted to explain theldeaning of words used in the tariff act, inasmuch as manufacturers appeared before the committees of congress and gave testimony concerning the goods made by-them, and the rates of duty to be imposed thereon.' Tht) board further found as follows; .
a
"From the inspection of other protests concerning the same sUbject.matter now before us, it appears that a number of the witnesses who testify in this case to the effect that · pile fabrics' is a term understood in the trade to embrace only fabrics velvets andplushes in which the pile tbreflds stand erect, presenting ,a smooth surface, are pecuniarily interested in ll;Iaintaining the cl"ims of these protests. A considerable of disintereste4 merchants, both in and outside of New York, whose testimony we have taken, concurin saying that the term' pile fabrics' was not, prior to October 1,1890, a term in ,commercial use, by which goods were bought or sold; that all such fabrics are specially designated in the trade; indeed, the claim is made by mE'rchants in a case now before us from San Francisco that certain astrachans, classified as trimmings, are pile fabrics. " The board of United States general appraisers made the following findings of fact;
"(1) That the protestants, H. Herrman. Sternbach&Co., imported into the port of New York, in October and November, 1890, certain fabrics, which the collector classified for duty as 'pile fabrics,' and levied duty upon the same at the rate of 49! cents per pound. and, in addition thereto, 60 per cent. ad valorem. in accordance with the provisions of paragraph 396 of the act of October 1. 1890. (2) That the fabrics so imported were in fact pile fabrics, and on the 1st day of October, 1890, and prior thereto, were boughtalld sold and exclusively know n in trade by the name of · astrachans.' (3) That the so-called ·astrachan' is a fabric composed of cotton and goat hair similar in texture to plush. but different therefrom generally ip. the length of its pile and the style both fabri,cs being often made to imitate furs, and both are of its largely used fur similar purpuses. (4) That the term' pUe fabrics' was not at the time of the passage Of the act aforesaid a term, of com mercial tion in the United States for the purchase and sale of any fabrics' made wholly or in part of wool; worsted, or goat hair. (5) That at the time last
944
FEDERAL
vol. 52.
me9Noned. there was po estaQIished. weU·known, certain, allduniform eral usage or custom in trade and comqlerce in the United States in relation to 'astrachans,' excluding' them from ()r; Including them within the term · fabrics. ' .., '. . ' j
I
abov,emel\tioned,are and descriptive; and, believing, t!Jat the claim of tbe. is not well founded. we QvelTule these protests. and affirJll of the collector." " .
And found the final conclusion of law as follows: . "lin oUr opinion" the words · other pile ,fabrics, ' .contained In the pararraph
The r,epord, iucludingthe the board, to/1:ether with their <:;ertifie<i statem.ent of the and their decision thereon, WaS retJl,VQfl<;!Jo tbe,circ,1,lit Wllrt ou.the,application of the importers, to section 15 qf the "Customs Administrative Act" therellpon the·:circuit court preceeded to hear and questiQns of law and ·flliCUnvolved in.suchdecision, and, examination anq pre3entation of the recordaIj.d arguments b$ in .behalf of the .importera for reversal and by the Uniteq attorney P:iJ.,bepalf of the,goy.erwnentfor a.(tirmance of the deQimen,o( :tlw board oLUllited general appraisers, tb.e circuit in. fftv()r oftne importers' contention, delivering fl;U opiOil;Jp.,whichisgivep,pe19w. , Stanley, G.,Olarke., 9fcounflel,) for importers. . U.. S. Atty, and Jarne{i T. Van Ren8selaer, Asst.U. S.Nty'.·· . ' j · .
IJAOOMBE,Oircuit Judge. It is DOt necessary to'add anythingto the remarks. whlchhave been 'made. from time to time in .the. course of the 'iI1dicating:Whx)tseems to me right ihthiscase to reverse doing I do' not the decis1.9P,of ,the board of! general 'appraisers.' ,underst8ilvi thl:lt I 3;J;ll at all departing froJ;ll the rule laid down in the Muser<Oa8ei (41 Fed. Rep. 877,) I think it was, as to the fact that they sit as experts, and gather testimony from all quarters. In the first place, they h:itve here very plainly indicated by their mvn expressions on the fi\CeOf their return that they have reached the conclusion in this case from the evidence which they return here. And it further appears quite plainly froW their opinion that to their conolusions they were influenced by a mistaken belief or understanding as to the rules of law as laid down by the· supreme court; that is\ they seem to consider that : the,se terrp!'!, in, ta::iff. acts may be interpreted to the technical 1,lhderstllhdmg of them by, manufacturers. Now, I know of no such rule, Some ,vOf(lsare to oe.taken ii1tlleir popular and ordinary signification, as they. ,would be, understood by all the world. Failing tbat, there is .,the well"known rule, reiterated over andover again, that, if' words have Rspt.'cial meaning in trade and commerce, they are to be given that'sp¢c'inl nl'eaningwhen we find them in tariff statutes. I Jinow'of 'n;6'.t1lh,Q, rule that, becansecongress fJ;'ames statutes after ad:visiqg experts,words s.hould in some instances begiven tbetechnical meaning which the manufiwturers give to them.
BRUSH ELECTRIC CO.
v.
CAtIFORNIA ELECTRIC LIGHT CO.
945
Again,' the board seems to have the understanding that a term used unless some one in the tariff act is not susceptible of a trade or more articles are bought and sold specifically by thllt name. In that, ngairi,ltbink they are in error. I think the contrary is very plainly shown in the case of Pickhardt v. Merritt, 132 U. S. 252,10 Sup. Ct. Rep. 80, which I referred to before. An a,rticle may be bought and sold by the specific name which indicates that precise article, and still a group' of' such articles may be known to trade and commerce by a commercial term, which includes them in a special group, and which still pever appears on the face of an invoice or bill of the goods when the artiCles are described, because they are always described by the same specific, name which refers to the particular article. Inasmuch as it is apparent, to my mind at least, that the conclusion which the board reached in this case was influenced by these views, which seem to me not iIi accordance with those heretofore expressed and laid down by the supreme c6urt, I shan set their decision aside, and direct that the article be classified as manufactures of wool, etc., under section 392.
BRUSH ELECTRIC Co. fJ. CALIFORNIA ELECTRIC liGHT CO.
et ale
;<ptreuit Court of AppeaLs, Ninth No. 54. L'
Oircuit.
Ootober 6, 1892.}
PATENTS FOR INVENTIONS-LICENSE-RIGHTS OF LICENSEE.
A grant by the owner of 'a'patent of an exclusive lioense to sell the patented article in a specified territory oarries with it an implied authority to join the owner, even' against his Will, as a party plaintiff, ill suits against infringers. Brush.Swan lliWctrte Ltght 00. v. Thompson-Houston ELectric Co., 48 Fed. Rep. 224, approved. 49 Fed. Rep. 73, affirmed. ',A lioensee cannot divide up his license and assign to third parties all his rights in certain portions of his territory, unless a. manifest intent to confer such appears in the contract of license; and such intent cannot be inferred merely from the g'l'B!lt to him and his "assigns. " .
2.
SAME-'-AsSIGNMENT OF LICENSE.
8.
SAME;
An attempted assignment by a liceusee, without authority, of all his rights in part of his territory, causes no forfeiture of the rights which he acquired by his license, and, as it passes nothing to his assignee, he may still sue for an infringement committed in the assigned territory, aud may join his licensor as a party com· plainant therein. The right to so join the licensor is not affected by the fact that the licensee has alsO as a party plaintiff a corporation which is merely its agent, and which is therefore not a necessary party. A patent may be assigned before it is aotually issued, and where the grants to a third person an exclusive right to sell the patented article in a specrfied territory,and. after obtaining the patent, treats such grantee as having a valid license. ,and allows it to acquire an extensive business, he is estopped to deny the validity Of the license. A grant by tbe owner of a patent of an exclusive right to sell the patented article within a specified territory excludes the grantor from such and COil'
4. SAME;
IS.
SAME....:.Es:roPPEL.
6.
SAME":::'N A:rURE OF LICENSEE'S RIGH:rS.
v.52F.nO.1l-60
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