Opinion · Supreme Court of the United States

Berbecker v. Robertson

Berbecker v. Robertson, 152 U.S. 373 (1894)

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1894-03-12
Topic
general

Mr. Chief Justice Fuller delivered the opinion of the court. Upon this record, it is apparent that these‘nails did not fall within the first of the three paragraphs, as they are referred to in the evidence as made of sheet brass. Counsel produced in argument some nails with wrought iron shanks and brass heads, which he claimed were the same as those in question, but they were not before us as exhibits, and, moreover, appeared to be in the nature of brass ornamentation. Nor did the nails come, within the second of the paragraphs, “ Britannia ware, and plated and gilt articles and wares of all kinds,” unless the principle of commercial designation could be properly applied and such designation was made out, for we concur in the view that gilt articles and wares taken in connection with Britannia and plated ware mean articles actually gilded by overlaying, and not merely made to look gilt by rolling them in a sécret chemical solution.

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11 opinions

Headnotes

  1. International Trade Law — Tariff Classification In classifying goods under the phrase "Britannia ware, and plated and gilt articles and wares of all kinds," the words take their meaning in connection with Britannia and plated ware and refer to articles actually gilded by overlaying, not to articles made to appear gilt by being rolled in a chemical solution.
  2. International Trade Law — Commercial Designation A commercial designation may be used to show that Congress employed particular words in a tariff act in a particular sense only where the usage from which the designation is inferred is definite, uniform, and general, and the designation is determined as of the date of the act.
  3. Evidence — Sufficiency of Usage Evidence Evidence of a trade usage is insufficient to establish a commercial designation where the witness's testimony on cross-examination limits his knowledge of the usage to his own practice, he cannot say the articles are not bought and sold under another designation, and he admits they are sometimes so bought and sold.
  4. Civil Procedure — Judgment as a Matter of Law A motion to strike out testimony made at the conclusion of the evidence, where no further evidence is offered, operates practically as a demurrer to the evidence, and any lack of comprehensiveness in the motion is cured by the court's direction of a verdict.
Mr. Chief Justice Fuller

delivered the opinion of the court.

Upon this record, it is apparent that these‘nails did not fall within the first of the three paragraphs, as they are referred to in the evidence as made of sheet brass. Counsel produced in argument some nails with wrought iron shanks and brass heads, which he claimed were the same as those in question, but they were not before us as exhibits, and, moreover, appeared to be in the nature of brass ornamentation.

Nor did the nails come, within the second of the paragraphs, “ Britannia ware, and plated and gilt articles and wares of all kinds,” unless the principle of commercial designation could be properly applied and such designation was made out, for we concur in the view that gilt articles and wares taken in connection with Britannia and plated ware mean articles actually gilded by overlaying, and not merely made to look gilt by rolling them in a sécret chemical solution. "We are not prepared to hold that, under such circumstances, this. paragraph would be applicable, even if nails thus manipulated were commercially designated ¿s “ gilt nails; ” but, if applicable, we are still of opinion that the judgment must be affirmed.

It has just been held that the usage from which it may be inferred that Congress intended to use particular words in a particular sense in a tariff act, must be' definite, uniform, and general^ and that such designation is to be determined as of the date of the act. Maddock v. Magone, ante, 368.

Tested by this rule, the evidence was entirely insufficient to show such a usage in respect of denominating this class of nails, “gilt nails,” contemporaneous with the tariff act of March 3, 1883, or otherwise.

True, plaintiff testified that the articles “are known in trade and commerce as gilt nails and are bought and sold as such,” but his testimony on cross-examination practically *377 limited his personal knowledge of usage in the trade to his own practice; he could not say that they were not bought and sold in trade and commerce as upholstery nails; and he admitted that they were sometimes so bought and sold as French, chair, and furniture nails. The evidence of a definite, general, and uniform usage was so slight., if any at all, that a verdict based upon it would be set aside, and the Circuit Court committed no. error in striking it out and in directing a verdict for defendant as to these particular nails.

Something was said , about the lack of precision in the motion “ to strike out the testimony as to the fact that they werepalled £ gilt nails,’ ” and the effect of not making it until the conclusion of the testimony of the witness; but as no further evidence was offered, the motion practically amounted to a demurrer to evidence, and if it was not sufficiently comprehensive, that was cured by the direction of the verdict. The Circuit Court was right, and the judgment is

Affirmed.

Me. Justice Gray was not present at the argument, and took no part in the decision of this case.