1. A. imported certain pictures painted by hand on porcelain.
When they are framed or in any manner set, the porcelain, which,
being manufactured only as a ground upon which to obtain a good
surface to paint, and not for any independent use, is obscured from
view, constitutes of itself no article of chinaware, and forms no
material part of their value.
Held that they are subject
to the duty of ten percent
ad valorem prescribed by
schedule M of sec. 2504 of the Revised Statutes, as paintings not
otherwise provided for.
2. Where the bill of exceptions sets forth all the facts, and
states that they were proved, this Court, if the law arising upon
them is for the plaintiff, will not reverse the judgment because a
peremptory instruction was given to return a verdict in his
favor.
The facts are stated in the opinion of the Court.
Page 103 U. S. 678
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This was a suit to recover back duties paid under protest. The
bill of exceptions stated it was proven at the trial that all the
goods charged with the duties were
"pictures painted by hand, and their value depended on the skill
of the particular artist who painted them, and the porcelain ground
on which they were painted was only used to obtain a good surface
on which to paint, and was entirely obscured from view when framed
or set in any manner, and formed no material part of the value of
said painting on porcelain, and did not in itself constitute an
article of chinaware, being manufactured simply as a ground for the
painting, and not for any use independent of the paintings."
The collector exacted a duty of fifty percent
ad
valorem under the clause in schedule B, sec. 2504, Revised
Statutes, relating to "china, porcelain, and parian ware, gilded,
ornamented, or decorated in any manner," while the importer claims
they were dutiable at ten percent
ad valorem only, under
the clause in schedule M, which embraces "paintings and statuary
not otherwise provided for." In other words, the collector claimed
they were decorated china or porcelain ware, and the importer that
they were paintings on china or porcelain. The evidence seems to
have left no doubt on this subject, for it is expressly stated in
the bill of exceptions to have been proved that the porcelain
ground on which the painting was done "did not in itself constitute
an article of chinaware." Such being the case, the painting which
was done on it did not make it decorated chinaware. Confessedly the
goods were paintings done by hand, and as it is not claimed they
were "otherwise provided for" than as chinaware decorated, it
follows the court was right in directing a verdict in favor of the
importer for the difference between ten and fifty percent. It is a
matter of no importance in this case that the colors used were
metallic, and that the pictures were baked to make the colors more
firm. If the jury had found a verdict in favor of the defendant,
the court should have set it aside as against what is admitted to
have been proved. Under such circumstances a judgment will not be
reversed on account of a positive instruction to find for the
plaintiff.
Pleasants v.
Fant, 22 Wall. 116.
Page 103 U. S. 679
As the bill of exceptions states that the facts on which the
case depends were proved, we cannot say that the admission in
evidence of samples of "similar" importations on which duties had
been paid at ten percent could have prejudiced the collector's
case. The question which the court decided was, that the goods were
not chinaware, but paintings.
Judgment affirmed.