Fritzsche v. Magone

40 F. 228, 1889 U.S. App. LEXIS 2475

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: October 22, 1889
• Status: Published

Opinion

Lacombe, J.,

(charging jury.) These articles are compounds of alcohol. As such they were properly dutiable as alcoholic compounds, which is the plaintiffs’ contention, unless they are otherwise specially enumerated in the tariff act. The government contends that they are otherwise specially enumerated by the term “alcoholic perfumery.” The definition of the term “ perfumery, ” as given to us from the dictionary which was used here, is unsatisfactory. The word “perfumery” is there defined by a reference only, — that is, “Perfumery. Perfumes in general;” and, when “Perfume” is turned to, we find that the only definition given is, “A substance that emits a scent or odor, which affects agreeably the organs of smelling.” Of course new-mown hay is within this definition, but, while in one sense it may be said to be a perfume, yet the meaning which we attach to the word “perfumery” in daily life is much more restricted. The word, as generally used, means not only a substance which emits a scent or odor, but also one which is handled, bought and sold, and used for the purpose qf obtaining from it such odor whenever required. But of course with the dictionary definition of the word we need not particularly concern ourselves. This tariff act is concerned with the trade and commerce of the country, and it is therefore proper to turn to that trade and commerce for the definition of words which are used in the act. Two definitions have been proffered here as to what the word “perfumery” means in the trade. One witness, called by the government describes it as “anything which gives a pleasant odor;” the articles in suit he calls crude perfumery. That is the claim of the government. The witnesses on the other side say that in trade the word “perfumery” is confined to the finished product that can be used by the consumer, and that until it is prat into such a condition that the consumer into whose hands it finally comes can use it for the purpose for which perfumery is used by individuals, it is not “perfumery,” as known in the trade.

It is for you to determine, in the first place, which of those definitions is established by the testimony in this case to be the trade definition. When you reach a conclusion upon that point, you will next say whether or not these particular articles fall within that definition.

Verdict for plaintiffs.