Jessup & Moore Paper Co. v. Cadwalader

43 F. 288, 1890 U.S. App. LEXIS 1651

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: April 2, 1890
• Status: Published

Opinion

McKennan, J.,

(charging jury.) The plaintiffs have presented the following points: (T) “Articles composed of India rubber, within the meaning of the existing tariff laws, (section 2502, Rev. St., schedule N,) are articles prepared or manufactured from India-rubber, of which the preparation or manufacture constitutes some portion of their commercial value. If, therefore, you find that the commercial value possessed by the old rubber shoes, upon which the plaintiffs in this case allege that the duty in this instance was improperly imposed, was due solely to the rubber they contained, and not to the preparation or manufacture which they had undergone, they were not ‘articles composed of rubber,’ within the meaning of the tariff law, as at present in force.” This I affirm. (2) “If you find that the ‘ old rubber shoes’ in question in this suit were not composed of India-rubber, within the meaning ol' the tariff law, and if you find that said ‘old rubber shoes’ were similar in material, quality, texture, and the use to which they can be applied, to crude rubber, your verdict must be for the plaintiffs.” This point is affirmed. (3) “Tinder all the evidence your verdict must be for the plaintiffs.” This point is affirmed.

The defendant has presented the following points: (1) “If you believe that the importation in suit is composed of India-rubber, not specially enumerated or provided for in the act of March 3, 1883, your verdict should be for the defendant.” Refused. (2) “If you believe that the importation in suit bears a similitude in material, quality, texture, or the use to which it may be applied, to an article composed of India-rubber, then your verdict should be for the defendant.” Refused. (3) “Even if the importation in suit be used for the purpose of reclaiming, by chemical process, the rubber contained therein, yet, if the product is inferior in material, quality, and texture to crude rubber, then it is not such a similitude to crude rubber as it is necessary, under section 2499, for the plaintiff to prove to entitle him to recover, and your verdict should be for the defendant.” Refused. (4) “Your verdict in this case should be for the defendant.” Refused.

If the plaintiffs’ first point is sound, they are entitled to recover. I will instruct, the jury pro forma, for the purpose of enabling them to find a verdict, that the law is correct, as stated in their first point, and that the plaintiffs are entitled to recover, but reserving the right to enter a verdict for the defendant if it should be found that the law is not correctly stated in that point. This action turns altogether upon a question of law on the constructions which are given to the act of congress, and, as \ve wish to give further time to the consideration of this question, and to have argument before the full bench upon the subject, I instruct you that the law, as stated in the plaintiffs’ first point, is a correct statement of the lawq and in that view under the facts here, the plaintiffs are entitled to a verdict for the amount of duty exacted in excess of what should have been charged. This will be subject to consideration by the court hereafter, and the court reserves the right to enter a verdict for the defendant in case it should be satisfied that the law is not as stated in this point.