United States v. E. Dillingham, Inc.

Cline, Judge: This is a collector’s appeal for reappraisement of 12 pairs of live chinchillas imported from Canada on July 28, 1948. They were invoiced, entered, and appraised at $25 per animal or a total of $600. They were exported by Intercontinental Chinchilla Co. of Kingston, Ontario, of which Robert W. V. Hanbridge is the proprietor, and were entered at Alexandria Bay, N. Y., by E. Dilling-ham, Inc., customs broker, for the account of E. F. Bowe. This case was heard at Ogdensburg, N. Y., and at New York, N. Y. At the second hearing a number of documents were marked for identification and decision was reserved as to their admission into evidence. Plaintiff’s exhibit 8 for identification and defendant’s exhibits G, II, I, and J for identification consist of affidavits purporting to state facts in regard to the issues herein. They are admissible under the provisions of section 501 of the Tariff Act of 1930, as amended by the Customs Administrative Act of 1938, and are to be given such weight by the court as they merit. United States v. Hess Bros. et al., 71 Treas. Dec. 1348, Reap. Dec. 4051; United States v. A. Orlikoff of Mexican Artcraft Co. et al., 25 Cust. Ct. 441, Reap. Dec. 7892. Plaintiff’s exhibit 9 for identification, a report of Customs Agent James F. Malone, is likewise admissible under section 501, supra. Plaintiff’s exhibit 10 for identification consists of copies of the official papers in connection with a subsequent entry of chinchillas purchased by the importer herein from the same vendor. Since there is other evidence in the case in regard to this shipment, the official papers are pertinent and properly admissible. The above documents are therefore admitted into evidence with exception to the losing party in each case. At the trial John T. Casey, appraiser at the port of Alexandria Bay, testified that prior to the entry herein he had never examined any live chinchillas; that he appraised this importation at $600 because of a misinterpretation of a reply from the Customs Information Exchange which he thought meant that there was no different value rather than that It had no information as to value; that fie talked with Mr. Hanbridge, the shipper, who told him that the . value was $600. — 701 — Mr. Robert W. V. Hanbridge, called as a witness by tbe plaintiff, testified tbat be is a medical student and a fur rancher; tbat be bas been dealing in chinchillas since tbe end of tbe war in 1945; that be advertised in several daily papers and tbe Fur Trade Journal; and tbat he received a letter of inquiry from E. F. Bowe in April 1948 which be did not answer until July. Tbe letter from Mr. Bowe, dated April 26, 1948 (plaintiff’s exhibit 5), requested wholesale prices of young mated pairs and bred pairs of chinchillas. Mr. Hanbridge’s reply, dated July 20, 1948 (plaintiff’s exhibit 6), stated tbat wholesale prices were from $400 to $700 a pair, subject to 10 per centum discount for cash. Mr. Hanbridge testified tbat Mr. Bowe visited bis ranch in July 1948; tbat be stated tbat be wanted to purchase pairs with litters; tbat be exhibited 13 or 14 pahs to him and be picked out what be wanted; tbat at tbat time be [Mr. Hanbridge] made a list containing tbe markings which were tattooed in tbe ears of the animals; tbat tbe prices on tbe list were those Mr. Bowe paid; that tbe list was made in duplicate and a copy given to Mr. Bowe. A notation in pencil which Mr. Hanbridge identified as this list was received in evidence as plaintiff’s exhibit 3. It contains a list of lettersjmd number, such as: COP 146 CCP 3, a notation under one set of markings “2 young,” tbe date “28 July,” and tbe following: 6 3 pr_$360 4 1 pr_^-$700 14 7 pr__$400 24 animals Mr. Hanbridge stated tbat tbe letters “CC” in tbe above marking meant Canadian chinchilla; tbat “P” stood for tbe year it was born, 1947; tbat “146” indicated tbat it was tbe 146th animal born on that ranch tbat year. Mr. Hanbridge testified further that Mr. Bowe did not want to pay for tbe animals until they were across the border; tbat be [Mr. Bowe] suggested “we put in a low figure to save duty”; tbat tbe figure used was the amount of $600 which bad to be paid to tbe Canadian Bank in American currency in order to obtain an export permit from tbe Foreign Exchange Control Board (form B-13); tbat tbe form B-13 for the merchandise herein was prepared by a broker in Kingston, Ontario, in tbe amount of $600; tbat be [Mr. Hanbridge] received $600 in American money and the balance of $3,980 in Canadian money; tbat be delivered tbe animals to Mr. Bowe at tbe border; tbat at tbat time be signed a proforma invoice showing tbe value to be $600; that tbe invoice was false and be knew at tbe time it was false. — 702 — Prior to this testimony, Mr. Hanbridge had made several contradictory statements to Treasury Attaché Maxwell Northup. In interviews on September 27 and October 6, 1948, he told Mr. Northup that he had charged Mr. Bowe $600 for the 12 pairs of chinchillas involved herein (plaintiff’s exhibit 1); on December 30, 1948, he stated that he could not give Mr. Northup accurate information regarding the prices at which he had sold chinchillas to Mr. Bowe (plaintiff’s exhibit 2); and at a conference on January 15, 1949, he stated that the price was $4,580, made up as follows: 3 pairs @ $360.00 per pair $1,080.00_3 to 5 months age. 1 pair 700.00_2 yrs. old with 2 young. 7 young pair @ $400.00 per pair 2,800.00_born 1947. 7 or 8 mos., $4,580.00 to 1 year old. Subsequently, these prices were incorporated in a consular invoice prepared by Mr. Dillingham, customs broker, and signed by Mr. Hanbridge (plaintiff’s exhibit 4). At the trial, Mr. Bowe testified that the total purchase price for the 12 pairs was $600; that the animals were of a type known as culls; that culls have practically no value; that he had purchased them for experimental purposes. There is evidence in the record that culls have pointed features like a rat and are not good for pelting or breeding; that they are rough looking and fur chewers; and that they have no value except for experimental purposes. However, Mr. Bowe’s statement that the animals he purchased were culls is not borne out by other evidence in the record. Mr. Agnew, caretaker of the Han-bridge ranch, testified that the animals sold to Mr. Bowe in July 1948 were culls, but he also stated that there were 40 animals on the ranch and about 15 were culls. Therefore, all 24 animals purchased by Mr. Bowe could not have been culls. The affidavits of Melvin Jonas (defendant’s exhibit I) and of Clifford T. Orton (defendant’s exhibit H) are of no value on this point since the animals referred to are described as chinchillas which the affiants had been informed had been purchased by Mr. Bowe in Kingston, Ontario. Moreover, the affidavit of Dr. Orton states that he was employed by Mr. Bowe to perform certain experiments on a portion of a lot of 24 chinchillas which Mr. Bowe said he had purchased in Canada. There is also evidence tending to show that several animals having the same earmarkings as those listed on plaintiff’s exhibit 3 were sold by Mr. Bowe for substantial sums (plaintiff’s exhibit 8). Out of the welter of contradictions and ambiguities in this record, the weight of the credible evidence establishes that the 12 pairs of chinchillas involved herein were not culls and that the actual purchase price was $4,580. The individual prices of each pair are as follows: — 703 — 3 pairs @_ $360 per pair 7 pairs @_$400 per pair 1 pair with 2 young @_ $700 per pair (plaintiff’s exhibits 2, 3, and 4) These prices are in accordance with Mr. Hanbridge’s letter to Mr. Bowe stating that his prices were from $400 to $700 a pair subject to 10 per centum discount for cash (plaintiff’s exhibit 6). They are also in accordance with quotations in Mr. Hanbridge’s price list of October 15, 1948, as follows: Young animals_ $25.00 to $100.00 Young mated pairs_ 400.00 Proven Breeders_ 500.00 to $600.00 (60 days pregnant) Pairs with male and female baby_$700.00 to $800.00 (defendant’s exhibit C) See also the prices which Mr. Hanbridge told Treasury Attaché Northup were established 2 months prior to September 27, 1948: Young animals, 1 month to 10 months_ $25 to $100 per pair • Young mated pairs, some bred_ $150 “ “ Proven breeders, some believed pregnant_J._$400 “ “ Proven breeders, guaranted [sic] at least 60 days pregnant_ $500 “ “ Single pairs with male and female baby or one female baby. _ $700 “ “ (plaintiff’s exhibit 1) The importation herein contained one pair of chinchillas (2 years old) with two young and cost $700. This price corresponded with the price listed in defendant’s exhibit C for “Pairs with male and female baby $700.00 to $800.00” and the price listed in plaintiff’s exhibit 1 for “Single pairs with male and female baby or one female baby $700 per pair.” Seven pairs (7 or 8 months to 1 year old) were purchased at $400 per pair, which price corresponds with the price listed in defendant’s exhibit C for “Young mated pairs” and the price listed in plaintiff’s exhibit 1 for “Proven breeders, some believed pregnant.” Three pairs (3 to 5 months old) were sold at $360 per pair, apparently because they were younger or because of a 10 per centum discount for cash. On August 16, 1948, Mr. Hanbridge sold to Mr. Bowe 27 chinchillas. Although there is contradictory testimony as to the price paid, the weight of the credible evidence establishes that the pinchase price was $5,200, as follows: One adult pair with one baby_ $400 12 young pairs of varying ages of a few months to a year @ $400 per pair. 4, 800 $5, 200 — 704 — The record discloses that Mr. Hanbridge sold 22 chinchillas to Mid-West Chinchilla Breeders, Inc., of Springfield, Ill., on September 7, 1948. The weight of the credible evidence establishes that the purchase price was $700 per pair including one pair with male and female babies. On December 18, 1948, Mr. Hanbridge sold four pairs of chinchillas (6-9 months old) at a total price of $1,600 to Mid-West Chinchilla Breeders, Inc. It therefore appears that Mr. Hanbridge offered and sold his chinchillas for export to the United States at prices of $400 and $700 per pair depending upon the age and condition of the animals. There is evidence that L. D. Woolsey, another seller of chinchillas, offered his animals for export to the United States at the following prices (plaintiff’s exhibit 1): Young, newly mated pair_ $800. 00 Pair due to litter_ 1, 000. 00 Pair with a litter of two_ 1, 250. 00 There is no evidence that any sales were made in accordance with this price list. On the question of foreign value, the following price list appears on the “Purchase Order” of the Intercontinental Chinchilla Co., a copy of which is attached to plaintiff’s exhibit 1: Class A_ 3 months old (No Guarantee)_ $800. 00 Class B_ 9 months old (Guaranteed)_ 1, 200. 00 Class C_ Proven Breeders (Guaranteed)_ 1, 500. 00 Mr. Northup reported (plaintiff’s exhibit 1): Mr. Hambridge [sic] stated that this price list became effective about one and one-half years ago and was in effect until two months ago, but then he amended this statement by adding that “the prices were abolished on practically the day printed outside of a sale to the odd person.” These purchase order forms are still in use however. In September 1948 the Intercontinental Chinchilla Co. advertised chinchillas in the Fur Trade Journal of Canada at $800 per pair and up. (Plaintiff’s exhibit 2.) The report of Treasury Attaché Northup (plaintiff's exhibit 1) lists the following sales by Mr. Hanbridge in Canada: Sept. 15,1947 J. E. Shannon 1 pair Class B $1, 200 Mar. 25, 1948 Robert Henry Bacon 1 pair Class B 1,200 Nov. 17,1947 Myrtle Martin 1 pair Class C 1, 500 Jan. 31, 1948 S. R. Amey ' 1 pair (to litter in 30 days) 1, 500 May 25, 1948 John Martin Wimbush 1 pair Class C 1,500 These sales are in accordance with the price list. The report also lists a sale in June 1947 to G. W. Robertson, a medical student, of one pair Class B at $800; a sale in the first half of 1948 to T. W. Monahan, — 705 — a personal friend, of three pairs at $500 per pair; and a sale on July 12, 1948, to Keith. F. Simmons of one pair Class B at $575, “agent’s price.” These sales do not appear to be in the regular course of business. The report also quotes from two letters produced by Dr. Woolsey and said by him to be illustrative of the prices he was asking in July and October 1948. The first, dated July 9, 1948, contains the following: Young, newly mated pair_ $800. 00 Pair due to litter_ 1, 000. 00 Pair with a litter of two_ 1, 400. 00 The second, dated October 5, 1948, contains the following: * * * On one and two pair purchased our prices range from $800.00 to $1400.00 as listed below: Newly mated pairs_ $800. 00 Proven breeders_ 1, 000. 00 Pregnant pairs_ 1, 200. 00 Pairs with litters of two_ 1, 400. 00 These prices are comparable to those charged by Mr. Hanbridge. The report (plaintiff’s exhibit 1) states that Dr. Woolsey sold one pair to W. H. Reid at $1,400 on May 1, 1948, and a pair with a litter of two to C. E. Addison at $1,200 on July 28, 1948; that Dr. Woolsey stated that Mr. Addison resold at $1,650 per pair; that Mr. Livermore of the Royal Canadian Chinchilla Co. of Montreal stated that his company’s price was $1,650 per pair guaranteed to litter in 111 days. Other sales set forth in the report are: By Mrs. F. E. Eagan: July 1948 Lloyd Woolsey_ 1 pair (1 % yrs. old) with 1 pair young $800 July 1948 Mr. Hanbridge_ 2 pairs (1J4 yrs. old, non-producers) @ $400 per pair June 1947 Dr. Woolsey_ 1 pair (1 yr. old) with young $825 By Louise McIntosh: August 1948 Mr. Hanbridge 3 pairs (nonproducers) @_$400 per pair November 1947 Dr. Woolsey 1 pair (1 yr. 2 mos.)-$700 Mr. Hanbridge apparently acted as agent in the sales said to be made to him, since he received a commission of 10 per centum. According to the report, Miss McIntosh stated that she would sell a pair with fitter at $1,000 but that she could make money selling at $400 as it only cost $4 a year to feed a chinchilla. From this evidence it appears that the foreign market value was considerably higher than the export value. There is nothing to indicate that the chinchillas offered and sold for export were of any different quality from those offered and sold in the home market. Therefore foreign value is the proper basis for the determination of the dutiable — 706 — value of the animals involved herein. The foreign values of such chinchillas, offered and sold by Mr. Hanbridge, are as follows: Class A type (3-5 months old)_ $800 per pair Class B type (7 or 8 months to 1 year old)_ 1, 200 per pair Class C type (pair with a litter of two)_ 1, 500 per pair On the record herein I find as facts: 1. That the merchandise consisted of 12 pairs of live chinchillas imported from Canada on July 28, 1948. 2. That three pairs of the animals were 3 to 5 months old, seven pairs were 7 or 8 months to 1 year old, and one pair was 2 years old with two young; that they were not culls. 3. That such chinchillas were freely offered for sale to all purchasers in the principal market of Kingston, Ontario, in the usual wholesale quantity of one pair in the ordinary course of trade both for home consumption and for export to the United States. 4. That the prices for such chinchillas for consumption in the foreign market were higher than those at which such animals were sold for export to this country, and that such prices were: Class A type (3-5 months old)_ $800 per pair Class B type (7 or 8 months to 1 year old)_ 1, 200 per pair Class C type (pair with a litter of two)_ 1, 500 per pair I conclude as a matter of law: 1. That the foreign value, as that value is defined in section 402 (c) of the Tariff Act of 1930, as amended, is the proper basis for determining the value of the chinchillas here involved. 2. That such values are: Three pairs (3-5 months old), Class A type, @ $800 per pair_ $2, 400 Seven pairs (7 or 8 months to 1 year old), Class B type, @ $1,200 per pair--- 8,400 One pair (2 years old with 2 young), Class C type, @ $1,500 per pair.. 1, 500 $12. 300 Judgment will be rendered accordingly.