United States v. MacNaughton

De Vries, Judge, delivered the opinion of the court: The determination of this appeal rests upon the construction to be given the testimony in the case, and particularly one statement made [115] by the importer, who is appellee here, called as a witness in his own behalf. His testimony was brief and is as follows: J. J. MacNaughton, called as a witness in his own behalf, being duly sworn, testified as follows: Q.. (By Mr. Bird.) What is your business? — A. Wholesale lumber. Q. You are the importer of white-oak piles protested against in this case? — A. Yes. * * * Q. Let us have the facts. — A. They are rough unmanufactured timber; they come in just as they were dropped in the forest. Q. How long were they? — A. Forty-five feet. Q. Were they peeled? — A. Fifty feet, I believe.. Q. They were substantially the length they were cut in the forest? — A. Yes. Q. Were they peeled? — A. No. Q. Were they sided?' — A. No, sir. Q. Were they just as they were dropped? — A. The branches were cut off. Q. Otherwise they were in the rough? — A. Yes. Q. (By Mr. Lawrence.) Is this timber ever used for spiles? — A. No, sir. Q. Ever used in building wharves? — A. No, sir. Q. I mean similar timber? — A. Yes; at times. Q. Common me for it? — A. I would say they were generally used for building wharves. By General Appraiser McClelland.) But they were in the rough state? — A. Yes; this timber was used for fender spiles, to protect the boats from knocking against it. They were in the rough state. The merchandise, which is fully described in the testimony quoted, was rated for duty by the collector of customs at thé port of Buffalo under the provisions of paragraph 200 of the tariff act of 1909, providing for “* * * round timber used for spars or in building wharves, * * The importer protested, founding his claim under the provisions of paragraph 712 of the same act, which may be quoted as follows: Wood: * * * Round unmanufactured timber, * * * all the foregoing not specially provi edf r in this section. The Board of General Appraisers found “that the merchandise consists of round or unmanfactured timber,” reversed the decision of the collector, and sustained the protest. The Government appeals. The appellee makes no appearance in this court other than to submit the case upon the record. The Government's sole contention is that use determines the dutiable status of this merchandise as properly classifiable under the provisions of said paragraph 200. The argument is based in the main if not entirely upon the testimony of the importing witness, wherein the following colloquy ensued: Q. Common use for it? — A. I would say they were generally used for building wharves. This is the only testimony in the record which indicates a use of the particular importation or similar importations for the purposes of building wharves. There is no testimony of a use for spars. Accord [116] ingly tbe decision must be rested upon tbe force and effect of tbat part of tbe testimony quoted. Inasmuch as tbe statute, paragraph 200, makes use tbe determining factor of all merchandise included therewithin for dutiable purposes, tbe unquestionable rule of law in tbe case, if it should appear that tbe imported merchandise was chiefly used either for spars or for building wharves, would make it properly classifiable for duty under tbe provisions of paragraph 200. Tbat principle has been so often enunciated it seems trite to argue tbe question. Vandiver v. United States (1 Ct. Cust. Appls., 194; T. D. 31219); United States v. Hempstead & Son (3 Ct. Cust. Appls., 436; T. D. 33004); Hartranft v. Langfeld (125 U. S., 128); Magone v. Wiederer (159 U. S., 555). Does tbe testimony in this record establish tbat tbe chief use of such timbers as these is for tbe construction of wharves ? There is neither evidence nor contention in tbe record tbat it is chiefly used for spars. We do not think tbat tbe language of tbe witness fairly considered is of tbat import which would warrant tbe assessment of duty provided by paragraph 200. Tbe question was, first, was this timber “ever used in building wharves?” and tbe answer was “No.” Here tbe witness evidently referred to tbe identical timber. Tbe next question was, “ I mean similar timber,” to which be frankly answered, “Yes; at times.” Then counsel for tbe Government asked the question, if this was a “common use for it ?” to which be answered, “I would say they were generally used for building wharves.” Both tbe definitions of tbe words “common” and “generally” and tbe language as used is susceptible of two interpretations. A thing may be generally used for a certain purpose where tbat use is simply a common one or one not uncommon or unfamiliar, but which, nevertheless, does not constitute its chief use. In tbat sense the word “generally!’ is coextensive with tbe word “common,” and tbe fact tbat tbe witness used tbe word “generally” in response to a question addressed to “common” use indicates tbat tbe witness understood tbe terms coextensive and bis answer in tbat sense. He may have meant, and probably did mean, to respond tbat such was a common— tbat is, not uncommon — use for such timber. It is a common use, indeed a general use, for bricks in building fireplaces, but it is not their chief use. It is a common use for plate glass to cover desks, but is not tbe chief use of plate glass. It is a common use for bolts in tbe building of wharves, but not their chief use. In this sense “common” and “generally” bespeak only a use which is not infrequent and which is common to everyday observation, but which, nevertheless, may not be tbe chief use of such an article. So tbat, as is indicated by tbe context, we can not say tbat tbe witness intended to' or did testify tbat tbe use of such timber for making wharves was other than a matter of frequency, or not uncommon. It is certainly a very [117] dubious and fragmentary bit of evidence upon which to reverse a decision of the Board of General Appraisers and predicate a finding that the timber with which wharves in this country are constructed is chiefly of the class represented by this importation. The learned general appraisers seem to have rested their decision in a great measure upon the fact that these logs were not peeled, but as they fell from the tree. In the absence of an established commercial usage, it was permissible for them, and they probably did indulge a common knowledge that such timbers are not usually used for spars or in the building of wharves in their imported condition, but rather are ordinarily further processed by barking at least. It is doubtful if importations of this character and condition are within the letter or spirit of paragraph 200, which, in other particulars at least, speaks only of timbers of considerable processing other than the mere felling in the forest. We can find nothing in the record so convincing of the contrary as to warrant reversal of the decision of the board. United States v. Myers & Co. (4 Ct. Cust. Appls., 431; T. D. 33857); United States v. Pierce (147 Fed., 199). Atfimned.