Muser v. Magone

41 F. 877, 1889 U.S. App. LEXIS 2086

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 11, 1889
• Status: Published

Opinion

Laoombe, J.,

{orally.) When attention was first called to section 9 of the act of 1883, I was of the opinion that it required, in cases where it applied, the determination of the cost of each particular bale of goods upon which duty was to be assessed. In view, however, of the circumstance that most of the goods referred to in section 9 are such as are received and disposed of in the United States by agents only, who frequently, if not universally, are without full knowledge as to all the items entering into the cost of production; and, further, in view of the fact that, if the section were thus interpreted, every single importation might become a subject of contest between the United States and the importer, in which the cost of the goods was to be determined by a jury; and, further, in view of the fact that such a method of determination of the dutiable value of imports is contrary to the entire scheme of the tariff acts, from the beginning, — I have reached the conclusion that section 9 was not intended to require a determination as to the cost of each specific bale or cask or box of goods; that it requires only a determination, estimation, or ascertainment of what the value of goods of the kind imported was in the places whence they came at the time of exportation. That is to be determined, of course, as all other general questions are determined, by an investigation into all such matters as will give the appraisers light upon the subject before them, — is in fact an appraisement, and should be treated as, under the decisions, appraisements are generally treated, that is, regarded as final, except in the case of reappraisement.

While upon this section, it is to be noted that what is to be determined is not the expense to which any particular individual is put, but the whole expense of manufacturing, preparing, and putting up such merchandise, whether such expense is borne by one individual or by several. This requires a statement broad enough to cover not only the cost and value of the raw materials entering into the completed product, and the other items which the importer in this case has specifically stated, to-wit, stitching, bleaching, cutting off, etc., but also other items which are certainly not here stated by the importer, nor specifically, as to these goods, by any one else. Among these items last referred to may be included the expense of keeping the money invested in the raw material tied up until the product is completed; the expense of insuring the raw material while in the hands of the various individuals who are working upon it in order to produce the finished product; the cost of the services of individuals who move this material to and fro between the different hands that work upon it, who, in each stage of the process of.manufact-, ure, examine and oversee it, in order to determine if it is being properly made, — all these items were not included in the statement made by, the importer upon the entries or invoices in this case.

I am, however, of the opinion — and that I consider the controlling point of this case — that this importation is not the kind of importation contemplated by section 9 at all. What section 9 is evidently intended to provide for is the case where an article made in a foreign country is not sold there, but is brought to the United States for sale. Such does not appear to be the case here. So far as the evidence shows, any one can go to St. Gall, and can there buy these very cotton embroideries, — not precisely of the same pattern as Mr. Muser’s, but he can get a selection from a large variety of assorted patterns, and, upon paying the cost of the cloth, stitching, bleaching, cutting up, and boxing, and the additional charge, he can obtain these goods in St. Gall. He may have to wait for a week, or three weeks, or five or six weeks; but the title to the goods changes hands in St. Gall, and the purchaser may have them delivered to him there, if he chooses to wait and take them.- I cannot see, then, that this is an instance of the kind specified in section 9, which contemplates cases where goods are made abroad, but are sold only here. If that is so, and section 9 does not apply to these goods, then the function which was to be discharged in regard to them by the appraiser was to determine their maiket value, — in the language of section 2902 of the Revised Statutes, to determine “the true and actual market value and wholesale price,’’and to determine that by all reasonable ways and means in their power. If they made such examination, this com-t is not warranted, in view of the decision of the supreme court in the case which was cited, Stairs v. Peaslee, 18 How. 521, in going behind the returns of such appraisers, and undertaking to estimate the value of these goods. I might state at the same time that, in estimating the market value, I see no -warrant or authority under either section, whether such estimation was a mere assessment of the market value or an ascertainment of the cost, for their adding, if they did so add, any item for profit. Of course, the expenses which I have referred to are matters proper to.be taken into consideration in determining the cost, or in reaching a determination of the market value; but the profit in addition and beyond that, was not properly to be included,,except so far as it may be included in the selling price in St. Gall. Whether or not they did so include the profit would, however, involve an examination as to the correctness of their determination as to the market value of these goods, which I do not think, under the decision above cited, we are warranted in. doing, any more than in that case the. court and-jury were entitled to examine into the.question whether the appraisers had really selected the principal market of the. country of export. Verdict directed for defendant.

.The jury rendered a .verdict in accordance with the direction of the court.