Keary v. Magone

40 F. 873, 1890 U.S. App. LEXIS 1597

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 9, 1890
• Status: Published

Opinion

Lacombe, J.,

(charging jury.} Paper is a substantial component of the articles imported here; therefore they fall within the enumeration of the 388th paragraph of the tariff, as manufactures of paper, or of -which paper is a component material, and should pay a duty only of 15 per cent., unless they are found elsewhere specifically enumerated in the tariff. The defendant claims that they are so found in the 410th paragraph, which provides for a duty of 35 per cent, on “card-cases, pocketbooks, shell-boxes, and all similar articles, of whatever material composed, and by whatever name known.” Of course these ants are to be interpreted in accordance with the understanding of the mercantile community, and you have therefore been informed by the witnesses called by both parties as to what, the trade understood by the terms “card-cases,” “pocket-books,”and “shell-boxes” at the time when this act was passed. And both side's here agree that these articles were not at that time included in those specific designations; that they are not card-cases nor pocketbooks nor shell-boxes. The claim of the defendant, however, is that they are articles similar to one or other of those particular trade articles thus enumerated. Similarity is not absolute likeness, and does not exclude the idea of difference. Likeness excludes the idea of difference. Similarity includes only the idea of casual likeness; and, in determining in this case the question of similarity, one important element which is usually taken into consideration is to be omitted, to-wit, the material of which they arc composed. The paragraph expressly provides for articles similar to card-cases, pocket-books, or shell-boxes, no matter of what material they may be composed. In determining, then, the question whether these articles are substantially similar to a card-case, a pocketbook, or a shell-box, you are to take into consideration the other elements which go to make up the similarity of one object to another. With regard to each one of these articles, which are of different sizes, and somewhat different shapes, you are to consider, in determining its similarity to the pocket-book, card-case, or shell-box of commerce, its form, its shape, its size, its weight, its organization, or the co-relation of its parts; its use, and adaptability to use, with due regard to the relative prominence of its different parts, and to the relative importance of its different uses, if it subserves more than a single use. Applying that test, if you should'reach the conclusion that these articles, or any of them, are similar to card-cases, pocket-books, or shell-boxes, as they were known to the trade when the act of 1883 was passed, then your verdict will be for the defendant; if you do not roach that conclusion, your verdict will be for the plaintiff'; and if you find a similarity as to certain of the articles, and a dissimilarity as to others, then you may render a verdict for the defendant as to such of the articles as you find to be similar, and a special verdict as to those articles which you find not to be similar.

Verdict for plaintiffs.