The crop ends of Bessemer steel rails are liable to a duty of 45
percent
ad valorem as "steel" under Schedule C of § 2502
of the Revised Statutes, as amended by § 6 of the Act of March 3,
1883, c. 121, 22 Stat. 500, and are not liable to a duty of only 20
percent
ad valorem as "metal unwrought" under the same
schedule.
Where, at the close of the plaintiff's evidence on a trial
before a jury, the defendant moves the court to direct a verdict
for him on the ground that the plaintiff has not shown sufficient
facts to warrant a recovery, and the motion is denied, and the
defendant excepts, the exception fails if the defendant afterwards
introduces evidence.
Under the practice in New York, allegations in the complaint
that the plaintiff "duly" protested in writing against the exaction
of duty, and "duly" appealed to the Secretary of the Treasury, and
that ninety days had not elapsed at the commencement of the suit
since the decision of the Secretary, if not denied by the answer,
are to be taken as true and are sufficient to prevent the defendant
from taking the ground at the trial that the protest was premature,
or that the plaintiff must give proof of an appeal, or of a
decision thereon, or of its date.
The case is stated in the opinion.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This is an action originally brought in the Superior Court of
the City of New York and removed by certiorari by the defendant
into the Circuit Court of the United States for the
Page 129 U. S. 234
Southern District of New York. It was brought by Charles L.
Perkins against William H. Robertson, collector of the port of New
York, to recover $1,460 as duties illegally exacted on an
importation of Bessemer steel rail crop-ends, from England, in
August, 1884. The defendant exacted duties on the articles at the
rate of 45 percentum
ad valorem, amounting to $2,628. The
plaintiff claimed that the lawful rate of duty was only 20
percentum
ad valorem, or $1,168. The complaint contained
the allegation that the plaintiff "duly made and filed due and
timely protest in writing against the said erroneous and illegal
assessment and exaction of the said duty;" that the plaintiff was
compelled to pay the $1,460 in order to obtain possession of the
merchandise; that he duly appealed to the Secretary of the Treasury
from the decision of the defendant ascertaining and liquidating the
duties, and that ninety days had not elapsed at the commencement of
the suit since the decision of the Secretary of the Treasury on
such appeal. The answer of the defendant did not deny the
allegations of the complaint as to protest and appeal and the
decision of the Secretary of the Treasury. The jury found a verdict
for the plaintiff. The parties consented in open court that the
amount of the verdict might be adjusted at the custom house under
the direction of the court. The amount was adjusted as of the date
of the verdict, and for that amount, with interest and costs -- in
all, $1,742.23 -- judgment was rendered for the plaintiff. To
review that judgment the defendant has brought a writ of error.
At the close of the plaintiff's evidence, the counsel for the
defendant moved the court to direct a verdict for the defendant on
the grounds, among others, (1) that the protest which was put in
evidence by the plaintiff was served and filed before liquidation,
and was therefore premature; (2) that no proof was offered or given
that there was any appeal to the Secretary of the Treasury, or any
decision on such appeal, and no proof of the date of such decision,
to show that the suit was brought in time. The motion was denied,
and the defendant excepted to the ruling.
Under § 914 of the Revised Statutes of the United States,
Page 129 U. S. 235
the practice, pleadings, and forms and modes of proceeding in
this case in regard to the complaint and the answer were required
to conform as near as may be to the practice, pleadings, and forms
and modes of proceeding existing at the time in like causes in the
courts of record of the State of New York. By § 481 of the New York
Code of Civil Procedure, it is required that the complaint shall
contain "a plain and concise statement of the facts constituting
each cause of action." Section 500 requires that the answer shall
contain
"a general or specific denial of each material allegation of the
complaint controverted by the defendant, or of any knowledge or
information thereof sufficient to form a belief."
By § 522, "each material allegation of the complaint, not
controverted by the answer," "must, for the purposes of the action,
be taken as true."
The allegation of the complaint in this case is that the
plaintiff "duly made and filed due and timely protest in writing,"
and "duly appealed to the Secretary of the Treasury," and "that
ninety days have not elapsed since the decision of the Secretary of
the Treasury on the aforesaid appeal." As none of these allegations
was denied in the manner required by § 500 of the Code, they were,
by § 522, to be taken as true, and no issue was joined upon any one
of them. This is the ruling in regard to these provisions by the
Court of Appeals of the State of New York. In
Lorillard v.
Clyde, 86 N.Y. 384, the complaint alleged that in pursuance of
a certain agreement, a corporation "was duly organized under the
laws of this state." It was contended on a demurrer to the
complaint that the agreement was illegal because it provided that
the parties thereto, consisting of five persons only, should form a
corporation, whereas the statute contemplated that at least seven
persons should unite in order to form a corporation. But the court
held that the allegation that a corporation was "duly organized
under the laws of this state" pursuant to the agreement imported
that the requisite number of persons united for that purpose; that
it must be assumed that the corporation was regularly organized,
and that it was unnecessary for the plaintiff to show in his
complaint the precise steps taken to
Page 129 U. S. 236
accomplish that result. The word "duly" means "in a proper way,
or regularly, or according to law."
See also Tuttle v.
People, 36 N.Y. 431, 436, and cases there cited;
Fryatt v.
Lindo, 3 Edw.Ch. 239;
People v. Walker, 23 Barb. 304;
People v. Mayor, 28 Barb. 240;
Burns v. People,
59 Barb. 531;
Gibson v. People, 5 Hun. 542.
The plaintiff claimed by his protest and at the trial that the
articles in question were liable to a duty of only twenty percentum
ad valorem under the provision of Schedule C of § 2502 of
the Revised Statutes, as amended by § 6 of the Act of March 3,
1883, c. 121, 22 Stat. 501, which imposes a duty of 20 percentum
ad valorem on "mineral substances in a crude state, and
metals unwrought, not specially enumerated or provided for in this
act." The collector had imposed a duty of 45 percentum
ad
valorem on the articles under the following provision of the
same Schedule C, 22 Stat. 500:
"Steel not especially enumerated or provided for in this act,
forty-five percentum
ad valorem, provided that all metal
produced from iron or its ores, which is cast and malleable, of
whatever description or form, without regard to the percentage of
carbon contained therein, whether produced by cementation or
converted, cast, or made from iron or its ores, by the crucible,
Bessemer, pneumatic, Thomas-Gilchrist, basic, Siemens-Martin, or
open-hearth process, or by the equivalent of either, or by the
combination of two or more of the processes, or their equivalents,
or by any fusion or other process which produces from iron or its
ores a metal either granular or fibrous in structure, which is cast
and malleable, excepting what is known as 'malleable iron
castings,' shall be classed and denominated as steel."
At the close of the plaintiff's evidence, the defendant moved
the court to direct a verdict for the defendant on the further
ground that the plaintiff had not shown facts sufficient to entitle
him to recover. The motion was denied by the court, and the
defendant excepted to the ruling. But as the defendant did not then
rest his case, but afterwards proceeded to introduce evidence, the
exception fails.
Accident Ins. Co. v. Crandal,
120 U. S. 527.
Page 129 U. S. 237
The plaintiff introduced evidence for the purpose of showing
that the article in question fell under the denomination of "metal
unwrought," not specially enumerated or provided for in the act,
and the defendant introduced evidence to show the contrary. It
appeared by the evidence of the plaintiff that the crop-end of a
Bessemer steel rail, such as the article in question, was the
imperfect end of a rail, which was cut off to bring the remainder
down to a solid rail of regular length; that the end thus cut off
was of the same texture and fabric with the rail which remained
after such end was cut off, and was made in the same manner, and
that the crop-end so cut off was Bessemer steel. It also appeared
that such ends, when imported, were sold as an article of
merchandise in this country, and were sometimes remelted in
furnaces, and that they were sometimes used, after importation, for
manufacturing other articles, by reheating them without their being
remelted, and had a value as a manufactured article other than for
the purpose of remelting. At the close of the testimony on both
sides, the defendant moved the court to direct a verdict for him on
the grounds that the plaintiff had not produced sufficient evidence
to make a case, that there was no evidence that the imported
articles were unwrought metal, and that they were steel, which was
specially provided for in the statute. The motion was denied by the
court, and the defendant excepted to the ruling.
The court charged the jury that the only question was whether
the article was wrought or unwrought metal; that the word "wrought"
meant wrought into something suitable for use, and not merely
wrought in some manner, by being manufactured or treated; that if
the article was a mere excess of material left after the making of
steel rails, it was not wrought metal within the sense of the
statute; that if it was something left over in excess of the
material, the jury were to return a verdict for the plaintiff; but
if it was an article fit for use in itself, made at the same time
with the making of the rail, they should return a verdict for the
defendant. The defendant excepted to that part of the charge which
stated that the only question for the jury was whether the
article
Page 129 U. S. 238
was wrought or unwrought metal, and also to that part which
stated that if the article was a mere excess of material in making
steel rails, it was not wrought metal in the sense of the
statute.
We are of opinion that the court erred in its disposition of the
case and its charge to the jury. The motion to direct a verdict for
the defendant on the ground that the article was not metal
unwrought, not specially enumerated or provided for in the statute,
but was steel, specially enumerated and provided for in the same
statute in a clause other than that regarding metals unwrought,
ought to have been granted. The article fell within the definition
of steel given in the statute. The testimony showed that it was
metal produced from iron or its ores by the Bessemer process within
the definition of the articles which the statute stated should "be
classed and denominated as steel." It was nonetheless steel because
it was an excess of material as the result of making steel rails,
cut off from the steel rail and not suitable for use in itself
without being remelted or reheated. The charge of the court on this
subject was subject to the exception and objection made to it.
It results from these views that
The judgment below must be reversed and the case be remanded
to the circuit court with a direction to grant a new
trial.