| U.S. Circuit Court for the District of Massachusetts | May 15, 1869
Merchandise of the growth or produce of countries east of the Cape of Good Hope, except raw cotton, was subject to a duty of 20 per cent, ad valorem, in addition to the duties imposed on any such articles when imported directly from the place or places of their growth or production. 13 Stat. 216, § 18. Id. 493, § 6. When imported directly from the country of their growth or production, teas were subject to a duty of 25 cents per pound. 13 Stat. 203, § 1. Imported as these teas were from London, they were subject to the duty of 25 cents per pound, and also to the duty of 20 per cent, ad valorem, because not imported directly from the country of their growth or production. The amount of duties is estimated on the number of pounds, and the value of the merchandise, as given in the invoice, was $28,931.65; ■ and the defendants paid that amount, and the teas were delivered to them, the United States not thereby waiving any claims for any balance that might be due. Payment of the estimated amount of the duties does not affect the rights of the parties in this suit, nor does the delivery of the importation, as the payment and delivery were made with the understanding that neither party waived any of their legal rights. On receipt of the report of the appraisers and the weigher, the collector assessed the duties in conformity to those reports. Adjusted in that manner, the balance due, as specific duties, was $907.25, and the balance due for the ad valorem duties was $141.00, making in all the precise sum claimed by the plaintiffs in their writ and declaration.
The defendants admitted that the amount claimed, as the balance for the specific duties, was due to the plaintiffs, and offered to pay it; but the collector refused to receive payment of that sum unless the other sum claimed was paid at the same time. They stated to the deputy-collector that they had that amount of gold, and that they would make a tende- of it, to which he replied, that they need not do that, as the government would acknowledge the tender. No other tender was made, and no money has been paid into court. Argument to show that the conversation between the defendants and the deputy-collector was not equivalent to a tender is unnecessary, as the statement of what occurred is sufficient to disprove any such theory. Authority to make such a waiver is not vested in the deputy-collector, and if it was, the conversation was too indefinite to amount to any such agreement. Apart, therefore, from the question as to the sufficiency of the sum which the defendants offered to pay, it is quite clear that the conversation between them and the deputy-collector, cannot avail them as a tender, especially as no tender was pleaded, and no money was paid into court. Tender of the whole amount claimed is not pretended, and if it was, the proposition could not be adopted, as it would find no support in the evidence. Unable to make any satisfactory adjustment with the plaintiffs, the defendants protested against the action of the collector, and appealed to the secretary of the-treasury, and the department affirmed the decision of the collector. They protested against the doings of the collector, upon the ground that the weight of the teas, as reported by the weigher, was excessive, and they now contend that the plaintiffs, under the circumstances of the case, were bound by the weight as expressed in the invoice.
Fraud is not imputed to the defendants in respect to the invoice. On the contrary, the parties agree that by the general custom and usage of the exporting and importing trade, well known to merchants engaged in the-trade, better weight is given in England than in the United States, so what is bought for and delivered in England as one hundred pounds of tea, actually weighs more than, one hundred pounds, and that it was in consequence of that custom and usual mode of weighing there, that the weight of the tea here was found to be greater than the invoice weight. Purchases and sales are always made, and prices are quoted and stated' in England with reference to the manner of weighing in that country, and importers here,, as the agreed statement shows, reckon their profits with reference to the difference between the weight there and in this country. But the standard pound avoirdupois is the-same in both countries, and much of the difference in the result, as shown in this case, arose from the fact that the weigher here-weighed a large number of the packages at one draft, instead of weighing each package-separately, .as the practice is in England. Some allowance is necessarily made for draft, in order to secure good weight; and the-greater the number of the drafts, the greater must be the aggregate of the allowance, to secure that object. But ad valorem duties, where they are required to be assessed on a given weight, must be assessed upon the-actual weight when landed, as ascertained by the proper officer of the customs. Appraisers determine the actual market value or wholesale price of the merchandise, in the principal markets of the country from which the same was imported; but they have no authority to determine the weight or quantity of the importation. They must determine what are the principal markets of the country from which the goods were imported, in order to determine what was the actual market value or wholesale price there at the period of exportation; but their powers do not authorize them to extend their inquiries beyond what is
Guided by these rules, it is clear that the court must give judgment for the plaintiffs, as the parties agree that the United States weigher ascertained the exact weight of the teas. Such being the case, the collector was bound to adopt that quantity, and the value ascertained by the appraisers, as the legal basis for the assessment of the duties.
Judgment for the plaintiffs, with interest and costs.