150 F. 529 | 2d Cir. | 1906
There is no question as to classification of the imported articles, but only as to their valuation; and the single point raised is whether the merchant appraiser who, together with a general appraiser, reappraised the goods, possessed the statutory qualifications. The importation occurred prior to the passage of the customs administrative act in 1890, which created the Board of General Appraisers, and the reappraisement was had under section 2930, U. S. Rev. St. That section provides that the “collector shall select one discreet and experienced merchant to be associated with one of the gen
“In regard to the question whether [the merchant appraiser] was a competent witness to prove that he was not familiar with the character and value of silk velvets we are of the opinion that his evidence on that subject was admissible. As the question of his familiarity with the article and with its value necessarily depended upon the nature and, to some degree at least, upon the extent of his experience in connection with the article, no one could know What that experience was so well as himself. If he is to be excluded as a witness on the subject, the court and the jury and the parties would be deprived of the best testimony within reach.”
In Magone v. Origet, 70 Fed. 778, 17 C. C. A. 363, this court sustained the Circuit Court in directing a verdict in favor of the importer, where the merchant appraiser himself testified to facts from which the court reached the conclusion that he was not familiar with the character and value of the goods in question. Both sides asked for the direction of a verdict, and neither side asked to go to the jury. The facts testified to by Ballin (the merchant appraiser in that case) are not set forth in the- report above cited; but counsel for defendant in error, who has examined the record, states them as follows :
“Origet imported cloths cut into lengths suitable for making overcoats; * * * and intended for sale to merchant tailors * * * high-priced woolens. * * * Ballin dealt in a very different class of goods — low class goods for the wholesale clothing trade.’’
This court said:-
“The question is purely one of fact, which, when submitted 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 complain if his opinion is justified by any of the testimony.”
In Megroz v. Erhardt, tried in the Circuit Court, Southern District of New York, Novernber 14, 1892 (not reported, but quoted from in the brief of defendant in error), it appeared that the -merchant ap
“He examined the invoices of merchants who dealt in such goods in order to inform himself as to their value only when he was being appointed appraiser. When that employment ceased, he ceased inquiry; his own business not requiring him to possess special knowledge on that subject.”
The court held he was not qualified, because the statute required an appraiser whose knowledge as to the value of the goods came not solely from a special examination of the elements which entered into their cost on the other side, but whose knowledge as to their value on the other side “was acquired in the transaction of his own business by trafficking in the goods.”
In the case at bar the goods were imported in 1889 and action begun the same year, but it was not brought on for trial until 1904. Meanwhile the merchant appraiser, Leahy, died (in 1898), so that the witness who best knew what familiarity he had with the character and value of similar goods was not called to testify. The main evidence on that part of the case is that of his partner, Van Ingen. It is the official duty of the collector to select an appraiser possessing the statutory qualifications; and at the outset it is to be assumed that the public officer performed his duty in that regard. Nat. Acc. Soc. v. Spiro, 94 Fed. 750, 37 C. C. A. 388. The burden, therefore, is with the plaintiff to overcome that presumption by sufficient affirmative proof. In the case at bar we are of the opinion that the proof is insufficient to accomplish that result. Keyser, who was custom house examiner of Fnglish woolens for five years prior to 1889, testified that the firm of E. H. Van Ingen & Co. dealt generally in the high-priced goods and not in low class goods, that he examined or passed all their goods at that time, and that “a majority of their goods were high-priced goods.” To the question whether or not they imported woolen cloths of the value of three shillings a y^ard for 56-inch goods — which are the goods in controversy — he replied:
“They may have. I could not say positively. It is 16 years ago, and I don’t remember that long,”
The plaintiff described the difference between the goods he dealt in exclusively and the finer goods which the Van Ingen firm handled and asserted that they never imported the cheap goods which plaintiffs firm brought over, but on cross-examination he frankly admitted that this assertion was only an inference, because he never met any competition, that he didn’t know all the worsteds they bought. This evidence is certainly insufficient to establish the proposition that the Van Ingen firm did not deal in goods of the character and value of those in suit sufficiently to become familiar with them.
The only other witness called also by the plaintiff was E. H. Van Ingen, the senior partner, who testified that in 1889 the firm consisted of himself and Leahy. When shown the invoices of the goods in controversy, he said that his firm dealt (at the time) in worsted coatings of such prices and such weights, and had a separate department for the wholesale clothing trade for which such goods were imported. The fact that the majority—or even the large majority—of their im
“In connection with the buying of goods and making contracts for goods and generally looking after the business. In doing that, it was necessary in order to familiarize myself with the goods that I expected to deal in or buy, to look at all the samples of stock of various manufacturers, and see who sold goods cheapest. If I did not go to the different houses handling that line of goods, they came to us, which is the rule over there rather. And they brought samples.”
In all this there is nothing which necessitates a conclusion that either partner was unfamiliar with the character and value abroad in. 1889 of goods similar to those on the invoices. It is a very different case from that presented in Megroz v. Erhardt, supra, where the merchant appraiser was a manufacturer, whose business did not require him to possess special knowledge on the subject of values in a foreign market. In the case at bar the money of the firm was at risk in a business in which it bought abroad and sold here. It was essential to success in such business that the purchases should be made at fair market values; otherwise the firm’s competitors here would soon get the best of them. As prudent business men with their own money at risk, it would seem reasonable to suppose that they would familiarize themselves with the character, price, and value of goods for which their money was expended, even though some subordinate gave more constant and special attention to the details of negotiations. It is, of course, conceivable