91 F. 642 | 2d Cir. | 1899
(after stating the facts). It is undisputed upon the proof that the goods in controversy were silk and cotton trimming's, silk chief value, cotton over 25 per cent., used for making and ornamenting hats, and commercially known as hat bands, hat trimmings, bands, and bindings. There are goods for that use that are made entirely of silk, but the mixed goods of silk and cotion are more numerous than the all silk goods. Moreover, it is manifest from a mere reading of the paragraphs above quoted that congress understood that the two descriptive phrases, “silk” and “of which silk is the component material of chief value,” are not synonymous, and that it uses those phrases to designate different groups. It is in like maimer apparent that the articles enumerated in paragraph 1110, other than the velvets, are such as are qualified by the first of these descriptive phrases, viz. “silk,” and that the same is true of the articles enumerated in paragraph 1111, other than the ready-made clothing. It is, indeed, not necessary that an article should be composed entirely of silk to come within the descriptive phrase “silk,” but it must, at least, be substantially of sillc; it must be found that “the silk so far predominates over the inferior material that it can be said that they [the goods] are made substantially of silk.” Swan v. Arthur, 103 U. S. 597. And predominance of the silk merely to the extent of being the component of chief value will not be enough, when that very degree of predominance is covered by the other descriptive phrase above quoted. It is not necessary in the case at bar to enter into any close analysis of the phrase to determine what percentage of foreign admixture will oust the article from the silk class. It is entirely plain that an article which is over 25 per cent, cotton cannot be fairly described as “silk” when there is no question of commercial designation (and there is none here), and when there is a description in the same act which exactly fits it, viz. “manufactures of which sillc is the component material of chief value.” The cases cited by plaintiff in error are not persuasive to a different conclusion. In Lane v. Russell, 4 Cliff. 122, Fed. Cas. No. 8,053, the articles were silk and cotton velvet ribbons, silk chief value, and held to be within the last two clauses of the paragraph (1110, supra). In Fisk v. Arthur, 103 U. S. 431, linen had been used to limited extent, not to make goods of mixed material, but to make manufactures of cotton more useful for some purposes. The court retes to the admixture as “some trifling or colorable change in the fabric.” In Hartranft v. Meyer, 135 U. S. 237, 10 Sup. Ct. 751, the cotton was less than 25 per cent. The articles in question, therefore, would be properly classified for duty under paragraph 1113, unless they are otherwise provided for. Both sides agree that they are
It is contended by defendant that plaintiff, whose protest was in the alternative (30 per cent, as hat materials, or not in excess of 50 per cent., under the proviso to act of 1875), cannot recover under both of two separate paragraphs, and that a liquidation already made under one is a bar to further prosecution under the other. The facts on which those objections are based are these: It appears that heretofore a suit was brought by the same plaintiff, through some other attorney, to recover excess of duties paid on the same goods, such suit being founded on some other protest. That suit was long since discontinued, the government about the same time refunding the difference between 60 per cent, and 50 per cent., the duty chargeable under paragraph 1113. In the suit at bar, plaintiffs claim only the difference between 50 per cent, and' 30 per cent. It is difficult to understand upon what theory this transaction can bar the plaintiffs of their recovery here. There has been no adjudication, no release. There is not a scintilla of proof to show any accord and satisfaction. The discontinued action, which terminated in no judgment, is as if it were never begun. All that has happened is that the government has once conceded that the articles were not dutiable under any of the 60 per cent, paragraphs, and has voluntarily repaid 10 per cent, improperly exacted, without requiring any release or stipulation not to prosecute for the additional exactions. Had the former suit gone into judgment upon an offer, different questions might have been presented; but, as it is, we know of no principle on which the acceptance of this voluntary payment can operate as a bar or an estoppel. The judgment of the circuit court is affirmed.