Jessup & Moore Paper Co. v. Cooper

46 F. 186, 1891 U.S. Dist. LEXIS 39

• Court: District Court, E.D. Pennsylvania
• Decided: April 7, 1891
• Status: Published

Opinion

Butler, J.,

(charging jury.) The plaintiff in this case, the Jessup & Moore Paper Company, imported into this country, and landed at the port of Philadelphia on October 18,1889, a cargo of old or second-hand gunny bagging, and entered the same at the custom-house, as free of duty, under a provision of the statute relating to the subject, which reads as follows: (Court read from statute.) Thirty-seven bales of the bagging were, however, treated by the appraiser as not falling within the terms of the statute, just read, but as suitable for use again as cotton bagging, and subjected to duty accordingly, under an.other provision of the statute. From this action of the appraiser the plaintiff's appealed, on the ground that the bagging so subjected to duty “is fit only to be converted into paper, and not fit for any other manufacture.” In the language of the plaintiffs: “We protest.” (Court read from protest.) Thus is presented the only question which we have to try — to-wit: Was the bagging fit only to be so converted, and “not fit for some other manufacture.” The plaintiff asks the court to charge you as follows:

“(1) If the jury believe that the gunny bagging forming the subject-matter of the claim in this suit was imported as and for paper stock, was sold for that purpose, and was in fact used as such and converted into paper, their verdict must be for the plaintiff.”

We cannot so charge. The point does not present the question involved.

“(2) If the gunny bagging, the subject of dispute in this action, was fit only to be converted into paper, and was unfit for any other manufacture, your verdict must be for the plaintiff,”

This we affirm. It properly states the question which you are to decide.

“(3) If the said gunny bagging was commercially fit only to be converted into paper, and was commercially unfit for any other manufacture, your verdict must be for the plaintiff.”

This is a statement of the same thing in somewhat different language, and is also true.

“(4) If, upon all the facts in this case, there exists a doubt in your minds, that doubt must be resolved in favor of the plaintiff and your verdict must be for it, as duties are never to be imposed on the citizen upon vague or •doubtful interpretation. ”

We cannot affirm this. The burden is on the plaintiff to satisfy you by evidence that the bagging was commercially fit only to be converted into paper, and was commercially unfit for any other manufacture,- otherwise your verdict must be against him. The plaintiff’s fifth point which is disaffirmed I need not read. The defendant has also presented points, the first and third of which are disaffirmed, and need not be read. His second point, which reads as follows: “If you believe the article in question is not fit to be converted into paper only, but is also fit for some other manufacture, then your verdict should be for the defendant,” is affirmed. This is an accurate presentation of the question which you are to decide, as we have before stated. By fitness for some •other manufacture, however, is meant commercial fitness. If the bag.ging could not profitably be applied to some other manufacture, then it was not commercially fit for such purpose. Considering this question in the light of all the evidence you must say whether it is proved that the bagging in question was fit only to be converted into paper, and not fit commercially for any other manufacture. It would be unprofitable to recount what the witnesses on the one side and the other have said on the subject. Their testimony is brief, and has been fully commented on by counsel, and you cannot fail to understand and appreciate it. If your minds are satisfied that the bagging was fit only to be converted into paper, and not fit commercially for any other manufacture, your verdict should be for the plaintiffs in the amount of their claim; otherwise it should be for the defendant.

Verdict for plaintiff.