At law. Action by John E. F. Zeh, Frederick Ebeling, and Theodore Reuss, trading as Zeh, Ebeling & Reuss, against John Cadwalader, collector of customs for the district of Philadelphia, to recover duties paid under protest. Verdict and judgment were rendered for plaintiffs, (42 Fed. 525,) and defendand brings error. Affirmed.
Statement by Mr. Justice GRAY:
This was an action, begun May 22, 1888, against the collector of the port of Philadelphia, to recover an excess of duties paid under protest upon four lots of earthenware, consisting of small cups, saucers, and mugs, and plates five or six inches in diameter, having upon them pictures of animals and of other objects, and letters of the alphabet, imported by the plaintiffs during the winter of 1887-88, invoiced as toys, and which the plaintiffs contended should have been assessed under the clause in Schedule N in the tariff act of March 3, 1883, (chapter 121,) 'dolls and toys, thirty-five per centum ad valorem,' but which the collector assessed under Schedule B of that act, imposing a duty on 'china, porcelain, parian, and bisque, earthen, stone and crockery were, including plaques, ornaments, charms, vases and statuettes, painted, printed or gilded, or otherwise decorated or ornamented in any manner, sixty per centum ad valorem.' 22 Stat. 495, 512.
At the trial, one of the plaintiffs and many other importers and sellers of china and earthenware, and of toys and fancy goods, in Philadelphia, called as witnesses for the plaintiffs, testified that there was a class of goods in their business made of earthenware, and consisting of cups, saucers, mugs and plates, commercially known and designated, bought and sold, as toys; that the articles in question (samples of which were produced by the plaintiffs) belonged to that class, were sold at $6 a gross or 50 cents a dozen, and were intended for children to play with, although though they could be, and sometimes were, used by children to drink or eat from.
The defendant called as witnesses two dealers in china and earthenware, who had been appraisers in the customhouse, and many manufacturers of earthenware at Trenton, in the state of New Jersey, all of whom testifled that there was a class of earthenwere goods known in the trade as toys, but that the articles in question did not come within that class, because they were not small enough, and were fit for practical use, and some of whom testified that they were commonly bought and sold as cups, saucers, plates, and mugs.
The defendant offered to prove by one of these witnesses that just before the trial he called at the toyshop of Schwarz, in Philadelphia, and asked for toy ware like the articles in question; was told that they did not keep such articles; and was shown tea sets of a smaller size. And he offered to prove by another of the witnesses that about the same time he called at John Wanamaker's establishment, in Philadelphia, and, upon inquiry at the toy department thereof, was informed that the articles in question were not sold in that department as toys, but were to be found in the regular china or crockery department, and that he thereupon went to that department, and was shown such articles. The court excluded this evidence, and the defendant excepted to its exclusion.
The only other witness for the defendant testified, without objection by the plaintiffs, that he had been for two years in Mr. Wanamaker's employ as assistant manager of the crockery, china, and glass department; that he knew the articles in question in his business; that they were known to the trade as plates, cups, saucers, and mugs, and were sold as child's sets, and their principal use was to eat and drink from; that the business in his department was not large in those articles; and that he knew nothing about a toy department in Mr. Wanamaker's establishment, except by passing through it.
The defendant requested the court to give to the jury the following instructions:
'(1) If you believe that the goods in question are bought, sold, and used as earthen, stone, or crockery ware, and not as toys, then your verdict should be for the defendant.
'(2) If you believe that the articles in question on March 3, 1883, and prior thereto, were commercially known and designated as earthenware, and if you believe that they were not at that time described and designated as toys, then it is immaterial how they have since been known and designated, and your verdict should be for the defendant.