Under schedule C of § 2502 of the Revised Statutes, as enacted
by § 6 of the Act of March 3, 1883, c. 121, 22 Stat. 497, iron ore
was charged with a duty of 75 cents per ton, and that duty was
assessable on the number of pounds of iron ore reported by the
United States weigher, and not on the ore after the moisture was
dried out of it.
This is an action brought in January, 1888, in the Circuit Court
of the United States for the Eastern District of Pennsylvania, by
John W. S. Earnshaw against John Cadwalader, Collector of Customs
for the District of Philadelphia, to recover $71.61, as an alleged
excess of duties exacted by the collector on three importations of
iron ore, made in February and April, 1887, by the plaintiff, into
the port of Philadelphia, from Porman, Spain. The case was tried
before a jury in October, 1888, who rendered a verdict for the
defendant, and he had a judgment, to review which the plaintiff has
brought a writ of error.
The iron ore was dutiable under Schedule C of § 2502 of the
Revised Statutes, as enacted by § 6 of the Act of March 3, 1883, c.
121, 22 Stat. 497, under the provision imposing a duty as follows:
"Iron ore, including manganiferous iron ore, also the dross or
residuum from burnt pyrites, seventy-five cents per ton." The
plaintiff seasonably paid, protested, appealed, and brought suit.
The form of his protest as to each of the three importations was
the same. The collector imposed a duty of 75 cents per ton on the
number of pounds of iron ore reported by the United States weigher.
The protest stated that the importer claimed that the collector
erred in exacting duty on the full weight reported by the weigher,
and that the importer paid the same under protest,
"because the importation is dutiable as merchandise which is
described as 'iron ore' in Act of
Page 145 U. S. 248
March 3, 1883, c. 121, sec. 6, Schedule C, and 'iron ore' was
and is understood among dealers in and consumers of such iron ore
in this country to refer, and did refer, to iron ore in the
condition of dryness in which it is sold in trade, which condition
of dryness is usually ascertained in trade by subjecting the iron
ore to a temperature of 212� Fahrenheit; but you have levied the
rate of seventy-five cents per ton on my importation when mixed
with, and the weight increased by, a considerable percent of water,
thereby making me pay, in violation of law, that rate of duty on
water; because the iron ore of commerce, to which the said tariff
law applies, is iron ore in a dry state --
i.e., free from
water not chemically combined -- and because, although the method
of ascertaining the amount of such mechanically mixed moisture is
well known, easily applied, and actually used between buyers and
sellers of such ores in this country, you have refused to ascertain
the true taxable weight of the iron ore of this entry in this or
any other way, or make any allowance for such mechanically and
accidentally combined moisture, in ascertaining the weight."
The plaintiff introduced evidence tending to show that samples
representative of the whole mass were taken by three different
samplers on the arrival of the different cargoes, which samples
were delivered to two chemists in the same condition as taken, in
order that the amount of moisture mechanically present, and the
amount of metallic iron, might be ascertained. The plaintiff then
introduced evidence tending to show that the cargoes of iron ore so
imported contained water mechanically present, and not chemically
combined with the ore, and claimed that such water was not subject
to duty as "iron ore." Evidence was given as to the quantity of
such water, and there was no dispute as to the propriety of the
method of ascertaining it, which was to dry the samples at the heat
of 212� Fahrenheit, and thus expel the water or moisture
mechanically present, without having any effect on the chemical
ingredients of the ore.
The plaintiff asked the court to rule that "the term
iron
ore,' in its ordinary meaning, does not include water which is
mechanically present, and not chemically combined with
Page 145 U. S.
249
the ore." The court refused so to rule, and the plaintiff
excepted.
In the course of the trial, the court, against the objection of
the plaintiff, admitted evidence tending to show that the iron ores
of the United States, which resembled, and were like, and had the
same characteristics as, the imported iron ore involved in this
suit, were dealt in in this country without an allowance for
moisture. The court, in ruling in favor of the admission of such
evidence, stated that the purpose of the testimony was to show
whether it was true, as was said by some of the witnesses, that the
signification of "iron ore," when applied to the description of ore
in question, meant the dry ore, because, as the court said, if it
were shown that in dealing in precisely the same character of ore
mined in the United States, there was no such limitation of the
meaning, and no such dealing, that bore directly on the weight and
credibility of the testimony given by the plaintiff for the purpose
of making an exception in favor of the particular description of
ore in question; that it was a legitimate argument that if the
designation or signification of the term "iron ore," when applied
to such description of soft ore mined in the United States,
included the water, it would be unreasonable to believe that the
designation of "iron ore," when applied to precisely the same kind
of iron ore, meant the dry ore, without the water, simply because
it came from across the sea, and that, although it was not direct
testimony as to the iron ore in question, it was testimony in
respect to iron ore precisely like it. The plaintiff excepted to
the admission of the evidence.
The court, among other things, charged the jury as follows:
"The term 'iron ore,' as defined by lexicographers and used and
understood in commerce generally, includes the water as well as
other foreign substances held in combination with iron, whether the
combination be chemical or physical. It follows, therefore, that
the duty imposed and complained of here was properly imposed unless
a distinction is to be drawn between this ore and iron ore
generally."
The plaintiff excepted to that part of the charge.
The plaintiff requested the court to charge the jury as
follows:
Page 145 U. S. 250
"If iron ore as imported into the United States, in generally
bought and sold on the basis that the water which is only
mechanically present, and not chemically united with the
constituents of the ore, should be removed, and the usual mode to
remove such moisture, to ascertain this basis and determine the
true ore, is by drying at 212 degrees Fahrenheit, that course
should be adopted to determine what is dutiable iron ore under the
tariff."
The court refused so to charge, and remarked that there was no
evidence to warrant a finding that the iron ore in question "is
generally bought and sold on the basis that the water which is only
mechanically present should be removed," except where that basis
was stipulated for by special contract, and that such transactions
(founded on contract) were unimportant, standing alone, in the
consideration of the case. To such ruling of the court the
plaintiff excepted.
The plaintiff also requested the court to charge the jury as
follows:
"If, upon the whole evidence, you are in doubt whether the iron
ore of commerce is iron ore free from water, not chemically
combined with it, it is your duty to give the importer, the
plaintiff in this case, the benefit of the doubt, and your verdict
should be for the plaintiff."
The court refused so to charge, and stated that the question
must be decided according to the weight of the evidence.
In the course of the charge given, the court submitted to the
jury the question as to what the term "iron ore" was understood to
mean commercially, and on this subject the court said to the
jury:
"In the enactment of tariff statutes, Congress must be
understood, when employing terms to describe articles of commerce,
to employ them in the sense in which they are commercially
understood and employed by persons dealing in such articles and
familiar with the subject -- in other words, as they are understood
and employed in the commerce to which they relate. If, therefore,
the plaintiff has proved that the term "iron ore," when applied to
the imported ore here in question, signifies to those dealing in
it, and familiar with the subject, dry ore only -- that is, ore
from which the water has been extracted -- this signification must
be given to the term as applied to this ore. To warrant this
construction, however,
Page 145 U. S. 251
the evidence must satisfy you that the term has this
signification generally -- that is, habitually, commonly -- in the
commerce respecting this ore, so as to be obligatory upon parties
dealing in the ore, without special contract on the subject. Does
the evidence satisfy you that it has? Looking at the question in
the light of the plaintiff's testimony alone, in the first
instance, is the existence of this signification, under the
circumstances stated, proved? His witnesses, when first examined,
went little further than to say that in buying and selling and
dealing generally in this ore, parties act upon the understanding
that the ore is dry -- in other words, that the water is excluded
from the weight. They further say, however, that special contracts
are entered into respecting it, generally if not always, whereby
the rights of purchasers to have the water so excluded is secured.
If the case had rested here, as it did when the plaintiff first
closed his testimony and the defendant moved for a nonsuit, the
court would, as it intimated, have held that the evidence was
insufficient to justify a finding in the plaintiff's favor. The
evidence seemed to show no more than a course or custom of dealing
by express contract respecting the ore, which, standing alone,
should have no influence in ascertaining the signification of the
term in question as applied to it. Subsequently the plaintiff
called these witnesses back and inquired of them: "What is the term
iron ore' understood to mean commercially among importers and
dealers in imported ore?" In other words, what is the iron ore of
commerce -- imported ore? And the witnesses answered substantially
that it is understood to be ore without the water -- dry ore. The
witnesses repeat their former testimony respecting the custom or
habit of dealing in the ore, that parties proceed upon the
understanding that the water is to be excluded, and that their
contracts contain a stipulation securing its exclusion. There were
three or four witnesses, very intelligent men, called back, who
thus testified respecting the signification of the term as applied
to this ore. This testimony, in terms at least, seemed to have a
broader scope than that previously heard, and to warrant a
submission of the question to you. In considering it, however, you
must bear in mind
Page 145 U. S.
252
what these witnesses said when first examined as well as
subsequently, and inquire whether their testimony, thus take
altogether, shows more than a course or custom of dealing in which
parties habitually contract, by special provision, for the
exclusion of water from dry ore. If it shows no more than this, it
is of no value. To sustain the plaintiff's case, the testimony must
show, as before stated, that the term "iron ore," as applied to the
ore in question, signifies, to persons familiar with the commerce
respecting it, dry ore only; that this is the common, well known,
and recognized signification of the term when so applied, upon
which signification parties buying and selling or otherwise dealing
in the ore have a clear right to depend without any contract or
"
brk:
stipulation respecting it. Does the plaintiff's testimony, even
when considered alone, show that the term, so applied, has this
signification? In determining this, it is important to remember
that parties dealing in the ore, according to the plaintiff's
testimony, do not seem to rely alone upon the existence of this
signification in dealing, but resort to contract for excluding the
water. Neither you nor the court can overlook the fact that this
manner of dealing by special contract seems to be inconsistent with
the alleged existence of a common, well understood signification of
the term "iron ore," such as is here set up. I have thus called
your attention to the question in the light of the plaintiff's
testimony alone. It is not to be decided, however, without
considering as well the testimony produced by the defendant. The
government has called several witnesses -- a larger number than
were called by the plaintiff, and equally intelligent, apparently
-- who say in substance that they are familiar with the ore in
question, several of them being dealers in it, and that the
signification of the term "iron ore," as applied to it, includes
the water, as well as everything else contained in the mass, just
as the term does when applied to any other description of iron ore;
that there is no such commodity known to commerce as dry iron ore;
that while the soft foreign ore is sometimes bought with the water
excluded, it is also bought without respect to the water, as all
other iron ore is bought, and that when it is so bought with the
water excluded,
Page 145 U. S. 253
this is always specially provided by the term "ores," as when
applied to hard and all other descriptions of ore. Now you must
determine from all the evidence in the case whether it is proved
that the term "iron ore," when applied to the description of
imported ore here involved, has the limited signification
attributed to it by the plaintiff -- that is, that it signifies dry
ore, ore with the water excluded. If you find it has this
signification generally, commonly, when so applied, your verdict
will be for the plaintiff for the amounts claimed; otherwise, your
verdict will be for the defendant.
There was no other exception by the plaintiff to any part of the
charge than the exception above specifically mentioned.
Page 145 U. S. 255
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
The evidence on the part of the plaintiff tended to show that
the quantity of water mechanically present, and not chemically
combined, in iron ores like those in question was variable and
accidental, and varied in ores which came from the same mine, the
chemical ingredients of which remained practically constant
accordingly as the ore had been subjected to rain or to exposure to
the elements; that the amount of water thus mechanically present
would vary from a few hundredths of 1 percent up to 12, 16, and 25
percent; that such variation was due to the mechanical absorption
of water; that practically all the moisture mechanically present
would dry out in the sun; and that the ore, as it came from the
mines in dry weather, was as dry as dust.
The question involved was whether the duty of 75 cents
Page 145 U. S. 256
per ton should be imposed on the government weight of the
article, according to the finding and record of the weighing
officers or whether such official weight should be reduced by an
allowance sufficient to render the iron ore no greater in weight
than its weight if raised, under conditions favorable to
evaporation, to a heat of 212� Fahrenheit. The burden of making out
a claim to the recovery of this difference rests upon the
importer.
The history of the question in the Treasury Department is as
follows:
On September 8, 1879, Assistant Secretary French, in a letter to
the collector of customs at New York, refused to make an allowance
for the increase of weight from moisture in certain imported iron
ore, holding that the duty accrued on the total quantity landed, as
shown by the weigher's return.
In a letter of May 17, 1886, by Acting Secretary Fairchild to
the collector of customs at Philadelphia, the same ruling was made,
and it was held that under the regulations of the department and
its decisions, no allowance could be made for the absorption of
moisture or sea water on the voyage of importation unless upon an
application filed with the collector of customs within ten days
after the landing of the goods and an ascertainment and report by
the appraiser of the percentage of damage or increased weight.
In September, 1886, an importer of iron ore contended that the
duty of 75 cents per ton imposed by the Act of March 3, 1883, upon
iron ore meant ore dry at the temperature of 212� Fahrenheit. The
Treasury Department submitted the question to the Attorney General,
and Acting Attorney General Jenks, in a letter to the Secretary,
dated September 17, 1886, 18 Op.Atty.Gen. 466, held that the duty
was to be levied on whatever was the known commercial signification
of "iron ore," and that if iron ore dried at a temperature of 212�
Fahrenheit was the standard adopted in commercial transactions of
iron ore, and was what was known in commerce as "iron ore," it was
the ore contemplated by the statute, and the duty should be levied
on that basis, citing
Two Hundred Chests of
Tea,
Page 145 U. S. 257
9 Wheat. 430;
Barlow v. United
States, 7 Pet. 404, and
Drew v. Grinnell,
115 U. S. 477.
Assistant Secretary Fairchild, on October 29, 1886, transmitted
to the collector of customs at New York a copy of the ruling of
Acting Attorney General Jenks of September 17, 1886, and stated
that the department had made careful inquiry as to the custom of
trade in buying and selling imported iron ore; that the great
weight of evidence was to the effect that the iron ore of commerce
was iron ore free from water not chemically combined; that it was
the custom to expel water which was only mechanically present
before proceeding to ascertain the amount of ore which was bought
and sold; that to do this, the ore was heated to 212� Fahrenheit;
that the rule "is hereby established" that for the purpose of
ascertaining the amount of duty to be paid upon importations of
iron ore, the weight of the ore when heated to a temperature of
212� Fahrenheit should be first found, and upon that weight duty
should be collected, and that entries of prior importations might
be reliquidated and duties refunded in accordance with that rule in
cases where the importers had fully complied with the provisions of
§ 2931 of the Revised Statutes as to protest, appeal, and suit.
On the 5th of November, 1886, Assistant Secretary Fairchild
telegraphed to the collector of customs at Baltimore to suspend
until further orders all reliquidations of entries on account of
allowance for moisture on importations of iron ore, under the
department's decision of October 29, 1886.
On the 12th of January, 1887, the Treasury Department submitted
to the Attorney General substantially the whole question whether
the term "iron ore," as used in the Tariff Act of March 3, 1883,
meant iron ore dried at a temperature of 212� Fahrenheit or iron
ore as it was delivered at the port of entry for weighing. In
reply, Attorney General Garland, in a letter to the Secretary of
the Treasury, dated January 19, 1887, 18 Op.Atty.Gen. 530, referred
to the letter of Acting Attorney General Jenks, of September 17,
1886, and, in speaking of the rule that the iron ore of the statute
was to be interpreted as the iron ore of commerce, cited the cases
of
Two
Page 145 U. S. 258
Hundred Chests of Tea, 9 Wheat. 430;
Barlow
v. United States, 7 Pet. 410, and
Elliott v.
Swartwout, 10 Pet. 137,
35 U. S. 151,
and said that "commerce," as used in that connection, was to be
understood in its comprehensive sense of buying and selling an
exchange in the general sales or traffic of our own markets; that
special contracts in which the term "iron ore" was defined by
special description or qualifying words would be no evidence of the
general commercial signification of the term; that if the
departmental practice and interpretation as to the collection of
customs on iron ore had been of longstanding and uniform prior to
1883, it was to be presumed that if such interpretation had been
false and vicious, Congress would have guarded against a like
interpretation of the act of 1883; that as that act had not
repudiated any prior interpretation, the presumption was very
strong that Congress, in enacting the Act of March 3, 1883, had
understood the iron ore of commerce to be what the practice of the
department had established, and that if the decision before
referred to, of September 8, 1879, that the total quantity landed,
as shown by the weigher's return, without allowance for increase of
weight, from moisture, of the iron ore imported, was subject to
duty, was in accordance with the practice of the department prior
to September 8, 1879, and was adhered to afterwards as the rule, it
would be a pregnant fact to guide to the same conclusion.
On February 3, 1887, Secretary Manning, in a letter to the
collector of customs at New York, stated that, since the letter of
Assistant Secretary Fairchild of October 29, 1886, and the
suspension announced by Assistant Secretary Fairchild to the
collector of customs at Baltimore by the telegram of November 5,
1886, the Secretary had duly considered a large amount of new
testimony, both for and against the proposition laid down in such
letter of October 29, 1886, that the term "iron ore," as used in
the Tariff Act of March 3, 1883, meant iron ore when dried at a
temperature of 212� Fahrenheit, and had received the opinion of
Attorney General Garland, of January 19, 1887; that, in the light
of such new testimony, and of the opinion of the Attorney General,
the Secretary decided that
Page 145 U. S. 259
iron ore, as known to the commerce of the United States, was the
ore in its natural state in respect to moisture, and that the
instructions of October 29, 1886, were therefore revoked, and the
collector was directed to assess duty on the actual weights as
reported by the United States weigher at the time of importation,
but that in the case of importations of iron ore which importers
might claim had been increased in weight on the voyage by the
addition of sea water, the regulations of the department applied,
and importers, on making due application thereunder, might obtain
such allowance as might be estimated and reported by the United
States appraiser.
No statute of the United States in force when the importations
in question were made recognized any deduction from the weight of
iron ore when imported because of its containing moisture. The ore
was weighed by the government's officers at the ship's side, and
the weight so taken was entered in a book and became a public
record of the government weight of the importation. No statute
authorized a deduction from such government weight in imposing the
duty of 75 cents a ton on the ore.
It appeared by the evidence that dried ore was an article
unknown to commerce or trade, and the evidence was clear that the
allowance between dealers for the moisture that would be expelled
by heating the ore to 212� Fahrenheit had been based on contract
and stipulation, and that no custom existed authorizing such
allowance even among dealers except where the express conditions of
the contract authorized such an allowance. But this whole question,
in connection with the fact that the evidence showed that no such
custom as an allowance for moisture was ever applied to a purchase
or sale of American iron ore, even by a stipulation in a contract,
and that some foreign ores were always sold by the ton and without
allowance, was submitted to and passed upon by the jury under a
proper charge.
The evidence shows that water, mechanically mixed, is one of the
natural and constant constituents of the iron ore of commerce, both
domestic and foreign, and that there is no warrant for the
conclusion that the iron ore of the statute is
Page 145 U. S. 260
limited to dry ore or ore with such mechanically mixed water
excluded. A verdict to the contrary would have been entirely
unsupported by the evidence.
The claim of the plaintiff is really for an allowance by the
government upon the government weight of the article imported, in
the condition in which the plaintiff imported it, with a view to
making it a different article from what it was when the importer
presented it to the weigher. By § 2890 of the Revised Statutes, the
weigher is to make a return of the articles weighed by him out of a
vessel within three days after the vessel is discharged, and such
return is to be made in a book prepared by the weigher for that
purpose and kept in the custom house. Under the statute, the weight
so ascertained and recorded becomes the government weight of iron
ore for the purpose of imposing thereon the duty of 75 cents a ton,
in the absence of a contrary provision in the statute. Any
allowance between dealers is shown to have been based upon an
agreement previously made to allow for moisture.
The importer had the right to introduce iron ore only on
complying with the statute, and that authorizes the entry only upon
payment of a duty of 75 cents per ton upon the article brought in,
and the ton is 2,240 pounds, by § 2951 of the Revised Statutes. It
is a necessity that all ore should have some moisture mechanically
mixed with it, and the statute is silent as to the moisture
mechanically mixed or chemically combined with the iron ore.
It appears that no alleged custom of dealers controls a carrier
as to the payment of freight for the transportation of the imported
iron ore, but the charge for transportation is by the actual
weight, including the water.
The provision of § 2927 of the Revised Statutes, as carried out
by the regulations of the Treasury Department, protects the
importer from losses by reason of water if he employs the methods
prescribed for such protection. Such methods exclude the
nonstatutory method sought to be applied in the present case.
The duty of 75 cents per ton on iron ore, containing such
quantity of water as it may contain, applies equally to the
Page 145 U. S. 261
duty per ton imposed by the act of 1883 on imported hay, as to
which no method is provided by statute for an allowance for the
moisture contained in it except as provided in regard to imports
damaged by water. In each case, the duty is imposed on the weight
of the article brought in. The principle is different from that in
regard to dirt clinging to the skin of a potato, or clay, sand, and
gravel mixed with flaxseed. In those cases, the dirt, clay, sand,
and gravel are plainly discoverable and readily eliminated, and do
not inhere in the article as moisture does in iron ore or in
hay.
Reference is made by the counsel for the plaintiff in error to
the provision of Schedule C of the Act of October 1, 1890, c. 1244,
26 Stat. 567, 574, paragraph 133, which imposes a duty of 75 cents
per ton on "iron ore, including manganiferous iron ore, also the
dross or residuum from burnt pyrites," and which further
provide
"that in levying and collecting the duty on iron ore, no
deduction shall be made from the weight of the ore on account of
moisture which may be chemically or physically combined
therewith."
It is contended that this provision of the Tariff Act of 1890 is
a legislative interpretation which shows that Congress did not
consider the term "iron ore," when used alone, as in the act of
1883, broad enough to embrace water held in mechanical combination;
that this is a recognition by Congress that the term in the act of
1883 did not include water mechanically or physically present in
the iron ore, and that under that act an allowance ought properly
to be made in ascertaining the dutiable weight at the custom house,
from the fact of the provision in the act of 1890 that such
allowance should not be made thereafter.
But it is manifest from the history of the importation of the
article, as shown in the proceedings of the Treasury Department in
regard to it above set forth, that the provision of the act of 1890
was inserted to save further trouble as to the question. The rule
claimed by the plaintiff to be applicable would exclude from the
government weight water chemically combined as well as that
physically mixed with the iron ore, for the proviso, being that no
deduction shall be
Page 145 U. S. 262
made from the weight on account of moisture "chemically or
physically" combined with the ore, if regarded as evidence that the
act of 1883 allowed for moisture physically or mechanically
combined, would also show that the act of 1883 allowed for water
chemically combined. No statute in regard to iron ore ever
permitted an allowance for the water chemically combined with it,
and the act of 1883 must have the same construction in regard to
all moisture, however mixed or combined with the ore.
The rule is invoked by the plaintiff in error which is set forth
in
Hartranft v. Wiegmann, 121 U.
S. 609,
121 U. S. 616,
that if the question in regard to a rate of duty is one of doubt,
the doubt is to be resolved in favor of the importer, as duties are
never imposed upon the citizen on vague or doubtful
interpretations. In the present case, the imposition of the duty is
distinct and clear, and there is no doubtful interpretation, and
the rule does not apply, for the reason that the importer seeks to
obtain an allowance in reduction of a duty which is distinctly
imposed.
It is stated in the brief for the plaintiff in error that as the
circuit court ruled that the ordinary definition of the term "iron
ore" included water mechanically present, the burden was on the
plaintiff to satisfy the jury that the interpretation given to the
term among commercial men did not include such water; that the
plaintiff was to fail or prevail as the jury interpreted the
meaning of the term in commerce to be the mass inclusive or
exclusive of the water, and that if, on the whole evidence, the
jury were in doubt as to what was the proper interpretation, that
doubt should have been resolved in favor of the importer.
But, the burden of proof being on the plaintiff to prove the
interpretation he contends for to be the true one, he could not be
entitled to a verdict so long as he failed to satisfy the jury, by
a preponderance of evidence, that his interpretation was the
correct one. The question of doubt referred to in
Hartranft v.
Wiegmann, 121 U. S. 609,
121 U. S. 616, is
a doubt of a very different character, and is as to whether, as
matter of legal construction and not as matter of fact, the article
is within the terms of the statute. The intention of Congress
Page 145 U. S. 263
to impose a duty of 75 cents a ton on the weight of iron ore is
expressed in clear and unambiguous language.
American Net &
Twine Co. v. Worthington, 141 U. S. 468,
141 U. S.
474.
The evidence put in on the part of the defendant and objected to
by the plaintiff, that the iron ores of the United States which
resemble, and were like, and had the same characteristics as, the
imported iron ores in question were dealt in in the United States
without an allowance for moisture was justified by the evidence
which has been put in on the part of the plaintiff, and the
explanation made by the court, as before set forth, that the
testimony was received as bearing directly upon the weight and
credibility of the testimony on the part of the plaintiff, was
sound. The evidence, too, was proper under the claim of custom set
up by the plaintiff.
We see no ground for a reversal of the judgment, and it is
Affirmed.
