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who had established his good faith in a forfeiture trial to have to pay an additional duty nevertheless. It seems to us, as it did when the question was before us in the Fur Clippings Case, that the simple answer to all these arguments is that the statute is not one whose phraseology requires construction. Neither in its words, its phraseology, nor its general structure does it present anything dubious, uncertain, ambiguous, or obscure. It provides for an appraisement by government officers, and for an additional duty of i per centum of the total appraised value for each i per centum of undervaluation. It limits such additional duties to the particular article or articles in each invoice that are so undervalued, and to 50 per centum of the appraised value of such articles (under some earlier statutes the additional duty increased with the undervaluation indefinitely, and might run up to 2,000 or 3,000 per centum). Perfect good faith, or entire absence of any intent to defraud, is no defense to the exaction of this additional duty. With no language in any wise suggestive of an alternative, the same section provides for seizure and proceedings to forfeit when the undervaluation exceeds 50 per centum,-a proceeding which may be defeated by showing good faith; and, if forfeiture is made out, it shall apply to the whole of the merchandise in the case or package containing the particular article or articles in each invoice which are undervalued. This may be a harsh system for the honest importer, but its amendment should be sought in congress, not in the courts. It is, no doubt, true that, under the section as it reads, an innocent importer who has undervalued his goods 90 per centum may have to stand the burden of a trial of the forfeiture action, and, prevailing in that, nevertheless have to yield up 50 per centum of their value as additional duty; but that state of affairs is not so extraordinary that the courts are to assume that congress intended something different from what it said, and are to construe unambiguous language contrary to its plain meaning. It may be noted that, under the construction for which plaintiff contends, an innocent importer who undervalued his goods 90 per centum would pay no additional duty at all (and establishing his innocence would avoid forfeiture), while the equally innocent importer who unfortunately had undervalued his goods only 49 per centum would have to pay 49 per centum of additional duty. This would seem to be quite as unjust as the system of which defendant complains. Certainly it would be more unfair as between both classes of innocent importers. We see no reason to modify the opinion expressed in the Fur Clippings Case.

The judgment of the district court is affirmed.

(113 Fed. 217.)

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 59.


Customs Administrative Act June, 1890, § 1, provides that merchandise imported in the United States shall, for the purp se of the act, be deemed the property of the one to whom it is consigned, but that the holder of any bill of lading consigned to order, and indorsed by the consignor, shall be deemed the consignee thereof. Held, that where merchandise is consigned to customs brokers for another, who is the owner, the brokers, having presented the invoice, made the entry, and received the goods, are liable for additional duties assessed because of under

valuation, In Error to the District Court of the United States for the Southern District of New York.

Action by the United States against Austin P. Baldwin and others to recover customs duties. From a judgment for the United States (107 Fed. 104), defendant brings error.

The action was brought to recover $285.58, balance of regular duties, and $706 as additional duties, under the privisions of section 7 of the customs administrative act, as amended by section 32 of the tariff act of 1897. Plaintiffs in error are partners engaged in business as forwarding agents and custom-house brokers in the city of New York. The merchandise in question consisted of a case of dressed furs, and, upon the bill of lading accoinpanying the same, the said merchandise was stated to be consigned to the de fendants for one Frank Norris. Norris was the owner in fact of the merchandise, and defendants bad no interest therein, except to perform their duties as agents and licensed custom-house brokers. They entered the goods with the collector, making the declaration prescribed for consignees, importers, or agents, pursuant to the customs administrative act of June, 1890, stating the value at $190, and specifying the said Frank Norris as the ultimate consignee and owner of such merchandise, and at the time of making such entry paid to the collect r $38 on account of duties. The goods were duly appraised at $1,412. Forfeiture proceedings were instituted. No person appeared, intervened, or made claim. The goods were decreed forfeited, and were sold, and proceeds covered into the treasury. Action was Drought in this court, as above stated, to recover regular duties, and also additional duties for undervaluation; recovery for such additional duties being asked only up to one-half the valuation, viz., $706. Plaintiff had judg. ment for the full amount.

Arthur M. King, for defendant in error.

Before WALLACE and LACOMBE, Circuit Judges, and TOWNSEND, District Judge.

PER CURIAM. Most of the questions raised on this appeal are the same as those decided in Gray v. U. S., 113 Fed. 213, the opinion in which is handed down herewith. Defendants contend that they are not liable as consignees, that they were merely forwarding agents and brokers, and that the consignee to whom the government must look for regular or additional duties is the “ultimate consignee” only.

The first section of the customs administrative act reads as follows:

"That all merchandise imported into the United States shall, for the purpose of this act, be deemed and held to be the property of the person to

151 C. C. A. 170.

whom the merchandise may be consigned; but the holder of any bill of lading consigned to order and indorsed by the consignor shall be deemed. the consignee thereof," etc.

The government is not called upon to hunt up any ultimate consignee, when there is a primary consignee to whom the goods are sent, and who himself presents the invoice, makes the entry, receives the bill of lading, and gets the goods; thus being himself their "importer.” Knox v. Devens, 5 Mason, 482, Fed. Cas. No. 7,905.

In U. S. v. Bevan, Crabbe, 324, Fed. Cas. No. 14,588, referred to in defendants' brief, apparently there had been no consignment to the persons sued.

The judgment of the district court is affirmed.

(113 Fed. 218.)

(Circuit Court of Appeals, Second Circuit. January 14, 1902.)

No. 4.

Where a vendee has ordered an article of a manufacturer for a particular purpose, and has had the opportunity of inspecting it during the manufacture, and relies on his own judgment, there is no implied war

ranty against latent defects. 2. SAME-ACCEPTANCE-WAIVER OF DEFECTS-EVIDENCE.

A contract for the manufacture of a motor required the purchaser to furnish an inspector to pass on all workmanship, with power to reject such as should not conform to the agreement, and to signify acceptance before removal from the factory. Such purchaser, while claiming a failure to complete the contract in the time limited, and after his inspector had complained of defects in the construction and refused to accept the motor, accepted it in its condition, in order to get possession. The manufacturer subsequently sued for the contract price, and for extra work outside the contract. Held, that it was proper to exclude evidence as to the character of the tests made at the factory, for the purpose of showing their incompleteness, and, as to tests made after delivery, to show that alleged defects were such as not to be discernible until the motor was used, since the purchaser, by acceptance, waived

the right to insist on a further test. 3. SAJE-ACTION FOR PRICE-PRIMA FACIE CASE.

The contract price for the construction of a motor was not to exceed $4.000; and the manufacturer, in an action for the price and for extra work, showed that, after the motor was shipped, it sent the purchaser bills aggregating more than $4,000, and for extra work, and that the purchaser, having received and retained them, subsequently inclosed a statement of independent counter charges, which admitted the items for $4,000, and $388.68 for extras. Held sufficient to make a prima facie case for the aggregate of such items, since the claim by the purchaser that he was entitled to items in his claim did not affect his admission of the correctness of the manufacturer's charges. In Error to the Circuit Court of the United States for the Southern District of New York.

Waldo G. Morse, for plaintiff in error.
Hamilton Wallis, for defendant in error.
Before WALLACE, Circuit Judge, and TOWNSEND, District


TOWNSEND, District Judge. This cause came here upon appeal from a judgment of the circuit court, Southern district of New York, entered upon a verdict in favor of the defendant in error, which was plaintiff below. The action was brought upon a contract to recover for machinery manufactured by plaintiff, and for extra work, labor, and materials outside of said contract. The defendant set up by counterclaim charges for materials furnished, and for expenses and damages by reason of imperfect work and failure to complete the contract within the time specified. The proposal contained in the following letter was accepted by defendant, and states the contract between the parties:

"New York, Feb. 15th, 1898. “Arthur P. Dodge, Esq., 27 William Street, New York City-Dear Sir: We will build for you one of your class C, double truck, 8''x12" cylinder, motor cars, according to your plans, patterns, and specifications.

"I. We will furnish all labor and material, excepting as provided in paragraph II. below, at actual cost to us, plus 35% f r superintendence, fixed charges, etc.; material furnished by us to be weighed as received by us from the manufacturers, or from our own forge and foundry. We will furnish you promptly with time cards showing the amount of work done by our workmen as the work progresses on the motor, as well as bills for all materials purchased by us, together with the weight of the same.

"II. We would not make the car b dy or furnishings, but would prefer to have you furnish material and build the same, to be delivered to us at our factory; and we will do whatever work is necessary to be done in connection with the completion of the motor car. You are at liberty to furnish the steel castings and condenser.

“III. We will agree to push the work of constructing the motor as fast as consistent with the furnishing of satisfactory materials and workmanship, and we estimate that we can complete it within two months from receipt of the necessary drawings and patterns. We will agree to complete the construction of the motor in accordance with drawings, specifications, and patterns, materials or parts, furnished us by you, within that time, provided no changes are made therein by you, or per your instructions, and that we are not delayed by failure on your part to furnish same to us as required for getting out the work, and also provided we are not delayed by strikes of workmen, or other causes beyond our control.

"IV. The payment for this motor to be as follows: On the above basis, and the total amount not to exceed four thousand (4,000) dollars for the completed motor, exclusive of the car body and furnishings; the same to be paid in full within three months after the acceptance of the completed motor; such acceptance to be based on your approval of materials and workmanship, as per drawings, specifications, and patterns, parts or materials, furnished by you, and to be given by you to us within ten days after the completion of the m tor by us in accordance with such drawings, patterns, specifications, parts, and materials, and before the motor is removed from our works; this payment to be guarantied to us by the Metropolitan Trust Company of the City of New York, or otherwise satisfactorily secured.

"V. In view of the special nature of the work, we should require that you have an inspector at our works during the construction of the motor, who shall be competent and authorized by you to pass upon all materials and workmanship as the work progresses, and he shall have the right to reject all such as sliall not be in accordance with this agreement. "Awaiting your early acceptance, we are, "Very truly yours,

The Dickson Mfg. Co.

“Per In accordance with the provisions of this contract, the defendant sent Hodges, one of its employés, to plaintiff's factory; and he

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remained there during the whole progress of the work, inspecting the materials and workmanship. The correspondence between the parties shows that he was a representative of defendant, such as was provided for in said contract. During this time he made frequent complaints to plaintiff, alleging unreasonable delays in the progress of the work, and imperfect materials and defective workmanship. After the working parts of the machine had been put together, it was connected with steam power and tested in the presence of Hodges and another representative of defendant. Plaintiff then presented to Hodges a paper stating that he (Hodges) accepted the work and approved the bill, and plaintiff refused to ship the machine until Hodges should sign said paper. Hodges declined to sign it, stating that the work was poor, and the bills were not in a condition to be approved. Plaintiff then wrote defendant as follows:

“New York, May 31st, 1898. "Arthur P. Dodge, Esq., Lords Court Building, New York-Dear Sir: Your representative at Scranton refused to-day to accept the motor car which we have built for you, and also said he was not in a position to approve the bills therefor. Of course, as it is a part of our agreement that we have such acceptance and approval before shipment of car from our works, we are holding it. "Yours truly,

The Dickson Mfg. Co.,

"Per H. J. Davis." Plaintiff replied as follows:

“June 1st, 1898. "Dickson Mfg. Co., 40 Wall Street, New York City-Gentlemen: Your letter of 31st ult. just received, and I note that you say that my 'representative at Scranton refused to-day to accept the motor car which we have built for you,' etc. Mr. Hodges, my representative, writes me this morning that you refused to allow the car to be shipped after it was loaded, unless he would not only accept and approve all of the work and material, but would approve of your bill for the same, which account has not yet been presented or even made out, and which could not be approved, certainly, before presentation. There is nothing in our contract that requires the approval of your bills before you deliver to us the result of your work and material. All that we are required to do is to accept the work and material when ready to be delivered to me. Hence I hereby accept and approve of all the material and work as placed upon the car ready for shipment to Wilmington to-day, in accordance with our contract of February 15, 1898, and now request that you telegraph to have the car shipped to Wilmington at once. Whenever you have your account ready, together with the time cards, &c., I shall be very glad to receive the same, and will then consider the correctness of the account. Awaiting your prompt reply, I am, "Very truly yours,

Arthur P. Dodge." The motor car was then shipped to Wilmington in accordance with

said request.

Plaintiff further showed that it had supplied extra work and materials upon the order of said Hodges, and that on June 2d it reirdered to defendant a bill for $4,000 for said motor, and for $936.59 for extra work.

On August 12, 1898, defendant sent a letter and statement to plaintiff, the material portions of which are as follows:

"August 12, 1898. "Dickson Mfg. Co., 40 Wall Street, City-Gentlemen: The total for the 'completed motor,' exclusive of the car body and furnishings, it is agreed

51 C.C.A.-12

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