Magone v. Origet

SHIPMAN, Circuit Judge (after stating the facts). The defendant below excepted to sundry questions, addressed to Mr. Baudoine, which were intended to elicit from him the fact that, in the reap-praisement, items of cost were added to the invoice prices which were prohibited, by section 7 of the áct of March 3, 1883 (22 Stat. 523), from being regarded in estimating the dutiable value of imported goods. For example, the witness was asked “if there was any item of cost covered by your advance to invoice prices on this invoice other than the cost of cutting the goods into cut lengths, you may state what that item of cost was,” which question was admitted against the objection of the defendant. It is true that, under the statutory system which existed at the time of the reap-praisement, errors of judgment of the appraisers, their mistaken ideas of the quality of the goods, or of the values of the elements which entered into the cost of manufacture, or their erroneous mental processes in reaching conclusions, could not be inquired into. Neither could they be compelled to disclose the reasons which directed their conclusions, but the illegality of their acts was open to examination by the jury, in an action at law against the collector to recover an excessive exaction, — as, for example, if they had added illegal items to make up the increased value, or if they had proceeded upon principles of valuation which the statutes upon the subject condemned. Robertson v. Frank Bros., 132 U. S. 17, 10 Sup. Ct. 5; Muser v. Magone, 155 U. S. 240, 15 Sup. Ct. 77; Passavant v. U. S., 148 U. S. 214, 13 Sup. Ct. 572. At the time of these importations, the provisions of section 2907, which declared that, in deter 781 mining' the dutiable value of merchandise, the actual or usual charge for putting up, preparing, and packing for transportation should be added to the cost, or to the general market value, had been repealed by section 7 of the tariff act of 1883 (22 Stat. 523), which provided that none of the charges imposed by section 2907 should he esti-ma ted in ascertaining the value of goods to be imported. The ques-(ion of fact properly before the jury was, whether the appraisers had estimated in accordance with the old or new statutory requirements, and was one upon which the only testimony in the case, that of Mr. Baudoine, was not entirely in harmony with itself. He clearly said that the advances made by him upon the invoice were made to cover the expense of the jobber’s cutting the full jueces according to the ordered lengths, of ticketing, taping, or lying them up, and placing them ready for shipment If these charges of ticketing and preparation for market were added, the appraisement was not in accordance with the statute. Both parties having virtually requested the court to find the facts, they are concluded by its iiuding, if there was any evidence to sustain it, and the only witness said enough to justify the court’s conclusion of fact. Merwin v. Magone (not yet officially reported) 70 Fed. 776; Chrystie v. Foster, 9 C. C. A. 606, 61 Fed. 551; Beuttell v. Magone, 157 U. S. 154, 15 Sup. Ct. 566; Kirtz v. Peck, 113 N. Y. 222, 21 N. E. 130. Bince the decisions of Oelbermann v. Merritt, 123 U. S. 356, 8 Sup. Ct. 151, and Mustin v. Cadwalader, 123 U. S. 369, 8 Sup. Ct. 158, it has not been doubted that section 2930 of the Revised Statutes required that the merchant appraiser in a reappraisement should be familiar with the character and value of the goods, and that, in an action at law to recover a,n exaction, claimed to have been illegal in consequence of the inability of the merchant appraiser to meet ibis requirement, the importer, if the objection had been duly taken in Ins protest, could show by the testimony of the appraiser himself that the jirovisions of the statute had been disregarded. The question is jiurelv one of fact, which, when submit Led to the jury, would naturally be accompanied by some instructions from the court; but, if it is left by both parties to the court, neither can comjilain, if Ms opinion is justified by any of the testimony. In this case Mr. Ballin led the court to believe that he was. not familiar with the jiarticular class of goods which he was called upon to ap-jiraise. The judgment of the circuit court is affirmed.