Bodart v. Schell

33 F. 825, 1888 U.S. App. LEXIS 2191

• Court: U.S. Circuit Court for the Southern District of Georgia
• Decided: January 13, 1888
• Status: Published

Opinion

Lacombe, J.

Before the argument of these motions, plaintiff proffered the annexed stipulation, which defendant declined to accept. Motions are now made for new trials, on the ground that no proof was given upon the trials that the protest to the entry by the Challenger, of August, 1857, was signed by the plaintiff’s firm, or by any member thereof, or by any authorized agent, as required by the protest act of 1845. Contrary to the impression formed at the argument, 1 am of the opinion that both motions must be granted. Upon re-examining the testimony of Mr. Stanwood in the action first tried, there does not seem to bo such a variance between it and his later evidence as to warrant a different disposition of the two motions. The legal propositions advanced by the plaintiff are undoubtedly sound; but the facts as disclosed on the record are not sufficient to warrant such ail application of them as will .sustain the verdict. The protest required by the act of 1845 must be signed, (Florio v. Peaslee, 2 Curt. 452,) but it is immaterial whether that signature is in writing, made with ink or pencil, stamped, or printed. Nor does it matter whether it was placed on the protest by the plaintiff, by his formally authorized agent, by one casually called upon for the occasion, or by a person employed by the firm, the proper discharge of whose functions would naturally call for the making of these protests. So, too, a signature affixed without authority would become the firm’s signature by adoption, when the protest was, by the firm or its agent, affixed to the .entry, or served on the collector. So, too, when a genuine protest is found in its proper place in the custom-house it will be presumed that it was attached,' presented, or served at the time of its date by the importer or his agent; and upon the strength of such presumption many verdicts have been rendered against the government since-this term opened. Here, however, neither handle will fit into the case. It cannot be presumed that the protest was attached to the entry by plaintiffs or their agent, because its genuineness is not shown, nor can its.genuineness be presumed on the theory that it was attached to the entry by plaintiffs or their agent, because that latter fact does not appear in evidence. The case is one of great hardship, produced in part by the carelessness of the collector’s subordinates, and in part by plaintiffs’ failure to secure among their own papers secondary evidence of these documents; but, in the absence of what the law recognizes as competent evidence of the facts, which plaintiffs must show to warrant recovery, I do not see how these verdicts can stand.

In the smaller action, the missing evidence only affects the Challenger entry, and a new trial will not be ordered if plaintiff stipulates to reduce the verdict by the amount of that entry.

Upon the new trial the missing protest was found, and verdict was directed for plaintiff.