42 F. 525 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1889
(charging jury.') The defendant asks the court to charge you on certain points, the first of which is as follows: “1. If you believe 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.” That is correct. “2. If you believe the articles in question on March 3, 1888, 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.” That is’true. This statute was passed in 1883, and if there is a trade designation it is the designation of that time and not subsequently that governs. “ 3. If you believe the articles in question are known as earthenware in the trade, and are chiefly used as other articles of earthenware, stone and crockery ware are used, and are not chiefly used as playthings for children, then your verdict should be for the defendant.” -We cannot so charge you. If they were denominated toys, by the trade, at that time referred to, it is unimportant how.they were used. “ 4. The circumstance that the article in question may possibly be used for purposes other than household purposes, is not controlling, and even if you believe that sometimes they are incidentally used by children as playthings, your verdict should be for the defendant; if you believe that their chief use is for household purposes; and that they are known as toys in the trade.” That is true. If they were not known by the trade as toys, then it is true that it is not important that they may have been used as playthings, if their chief use was for household purposes; but if they were known in the trade as toys, then it does not make any odds how they were used. “5. If you find that there is no trade designation of these articles as toys, then the .question becomes purely and simply one of fact, viz.: — What is the predominating use to which these'articles are devoted, and if you believe that they are not chiefly used as playthings for children, then your verdict should he for the defendant. That is correct. The court affirms that. This assertion is all predicated upon your not finding that they are known to the trade as toys. “6. If you believe that the articles in question are bought and sold under the names of a cup, saucer, and plate, and not under the name of toys, then your verdict should he for the defendant.” That probably means the same thing. If they are not designated by and known to the trade as toys, hut are known simply as cups, saucers, plates, etc., then they were properly classified, and your verdict should
The plaintiff having imported the merchandise involved — consisting of cups, saucers, plates, and mugs — it was classified by the customs officers as earthenware, and subjected to the duty imposed by the statute on this class of merchandise — to-wit, 60 per cent. The plaintiff claims that it should have been classified as “toys,” and subjected to the duty imposed by the statute on this class, to-wit: — 35 per cent. He therefore seeks in this suit to recover the difference between 35 and 60 per cent., which he paid. The term “toys,” used in the statute, is to receive the signification ordinarily attributed to it in common speech, unless the evidence shows that it has a different trade signification, that is, that it is differently used and understood when applied to such merchandise, by those engaged in commerce respecting it, and had such different signification at fhe date of the statute, 1883. The signification of the term in common speech, embraces only such things as are primarily intended for the entertainment and amusement of children. It does not matter that they may bo susceptible of other uses; if the predominating design and use is such amusement and entertainment, the articles fall within the signification of the term “toys” as employed in
The plaintiff has also placed before you numerous trade circulars or price-lists containing information on the subject. From this evidence, and any other you may find in the cause bearing on the question, you must decide whether the term “toy” as used in the trade at the date of the statute, did or did not embrace these articles. If you find it did, your verdict will be for the plaintiff' as before stated. If you do not so find, your verdict will be for the defendant.
There is no place here for sympathy or prejudice. If you find that tire term in question has a well-known trade signification, (had at the date of the statute,) and that these articles fall within it, your verdict must be for the plaintiff, no matter whether the trade designation seems to you to be reasonable,, or not. If you do not so find, your verdict must be for the defendant.