such bond had been assigned to him," does not render him, in fact or
constructively, an assignee, within the meaning of the federal judiciary
act, so as to preclude a circuit court of the United States from taking
cognizance of such action, where the plaintiff is a citizen of another state.
although the sheriff could not have sued therein.
-Smith.v. Packard, 98 Fed. 793....
Jurisdiction dependent on amount or value in controversy.
Act Cong. March 3, 1887 (24 Stat. 505), gives jurisdiction to the court of
claims, inter alia, on any contract, express or implied, with the United
States, or for damages, liquidated or unliquidated, in cases not sounding
in tort, in respect of which claims the party would be entitled to redress
against the United States, either in a court of law, equity, or admiralty,
if the United States were suable. Section 2 gives the federal district and
circuit courts concurrent jurisdiction with the court of claims as to mat-
ters named in the preceding section, except that the district courts have
jurisdiction not to exceed $1,000, and the circuit courts between $1,000
and $10,000. Held, that a claim against the United States for salvage in
the sum of $10,000 is within the jurisdiction of the circuit court.
-United States v. Morgan, 99 Fed. 570.............39 C. C. A. 653
The amount in dispute, in an action for jurisdictional purposes in a fed-
eral court, is determined by the amount claimed by the plaintiff in his
pleading, in good faith, although such claim is made under a mistake of
fact, as subsequently shown by the evidence.
-Kunkel v. Brown, 99 Fed. 593....
State laws as rules of decision.
The decisions of the supreme court of a state, defining and limiting the
powers of corporations created under the statutes of the state, are con-
structions of such statutes which will be followed by the federal courts.
-Schofield v. Goodrich Bros. Banking Co., 98 Fed. 271..39 C. C. A. 76
The question whether employés are fellow servants, so as to preclude
a recovery from the master by one for the negligence of the other, is one
of general law, as to which a federal court is not bound by the decisions
of the courts of the state.
-Hunt v. Hurd, 98 Fed. 683.....
A decision of the supreme court of a state holding invalid a township
election authorizing the issuance of bonds, which was not made until after
the bonds had been issued and sold, is not conclusive on a federal court in
an action to recover on such bonds.
-Rondot v. Rogers Tp., 99 Fed. 202....
Circuit courts of appeals.
A suit brought to have ordinances granting a franchise to construct and
operate a street railroad annulled on the ground that they impair the obli-
gation of a contract made by an act of the legislature and a prior ordi-
nance, by which plaintiff claims to have been granted an exclusive fran-
chise, and deprive plaintiff of property without due process of law, neces-
sarily involves a constitutional question, and the circuit court of appeals is
without jurisdiction of an appeal therein.
-J. C. Hubinger Co. v. Quincy Horse-Railway & Carrying Co., 98
Fed. 897......
..39 C. C. A. 336
§ 7. Concurrent and conflicting jurisdiction, and comity.
A circuit court of the United States is not prevented by Rev. St. § 720,
from granting an injunction against a proceeding in a state court, where
necessary to render effective its own decree; and where it has rendered a
decree foreclosing a mortgage upon a railroad, and has sold the property
thereunder, it has jurisdiction, as ancillary to such suit, to entertain a
bill by the purchaser to enjoin a stockholder of the mortgagor company
from maintaining a suit in a state court against such company to place
the road in the hands of a receiver, in disregard of the decree of the federal
court, by which he is bound, and of the rights of the purchaser thereunder
-James v. Central Trust Co. of New York, 98 Fed. 489.
![[blocks in formation]](https://books.google.com.bd/books/content?id=5r8XAAAAYAAJ&output=html_text&pg=PA701&img=1&zoom=3&hl=en&q=editions:UOM39015075032303&cds=1&sig=ACfU3U0hiM4qebwdrbGw375illuE4afE0g&edge=0&edge=stretch&ci=89,251,809,261)
§ 1. Validity, construction, and operation of customs laws in general.
In construing tariff acts based on the fundamental idea of protection to
domestic manufacturers, and in which the duties are uniformly increased
to correspond with the advanced state of manufacture of the article, where
a material used in making manufactured articles has been subjected to
further treatment than that of a class specifically enumerated, it should
be classified with a higher, rather than a lower, class.
-United States v. Eschwege, 98 Fed. 600; Eschwege v. United States,
Id. ...
.39 C. C. A. 169
To constitute similarity in use, within the meaning of the similitude
clause of the tariff act of 1894 (section 4), which will require a nonenumer-
ated article to be classified with one enumerated, the uses of the two need
not be identical or interchangeable.
-United States v. Dana, 99 Fed. 433..
2. Goods subject to duty, rate, and amount.
Construing paragraphs 315 and 342 of the tariff act of 1897 together,
"plushes, velvets, velveteens, corduroys and all pile fabrics, cut or uncut,"
"composed of cotton or other vegetable fibre," are dutiable under para-
graph 315, except "pile fabrics of which flax is the component material of
chief value," which are dutiable under paragraph 342, and, under such
construction, colored flax and cotton plush, flax chief value, is dutiable un-
der paragraph 342.
-Stern v. United States, 98 Fed. 417.....
It having been the uniform practice of the treasury department since
1866, in case of dutiable oil paintings in frames, to assess a separate and
independent duty on the frames, tariff statutes since enacted must be
construed with reference to such practice; and the word "paintings," as
used in paragraph 454 of the tariff act of 1897, cannot be construed to
include the frames in which such paintings are imported; nor are the
frames to be assessed for duty as "coverings," under section 19 of the cus-
toms administrative act of 1890, but they are to be classified as separate
importations, and are dutiable, under paragraph 208 of the same tariff
act, as manufactures of wood.
-United States v. Hensel, 98 Fed. 418.......
The first part of paragraph 258 of the tariff act of 1897 covers only
the choicer articles of small fish when "packed in oil or otherwise in bot-
tles, jars, tin boxes or cans," and fish of the herring family, pickled and put
up in kegs, are not dutiable under such paragraph, but under paragraph
260, as pickled herrings.
-United States v. Rosenstein, 98 Fed. 420...........39 C. C. A. 122
Pieces of leather, cut uniform, 28 inches in width and from 32 to 36 inches
in length, having on one side an embossed pattern in silver and other
colors, and designed to be cut and used in making dress trimmings, pocket-
books, and other fancy articles, are dutiable under paragraph 340 of the
tariff act of 1894, as leather not specially provided for, and not under
paragraph 341, as “skins," or under paragraph 342, as leather cut into forms
suitable for conversion into manufactured articles.
-United States v. Naday, 98 Fed. 421.....
Glass siphon bottles, intended for holding gas-charged waters, having
etched thereon merely a name and address, with the words, "This siphon
not to be sold," all inclosed in rectangular lines, are not dutiable under
paragraph 90 of the tariff act of 1894, as ornamented or decorated bottles,
but as plain glass bottles, under paragraph 88; but similar bottles having
etched thereon a trade-mark design composed of the outlines of the figure
of a woman, inclosed in an oval panel resting upon a scrolled base, are orna-
mented or decorated, and dutiable under paragraph 90.
-Koscherak v. United States, 98 Fed. 596....
To bring glass bottles within paragraph 90 of the tariff act of 1894 which
provides for such bottles "when cut, engraved, painted, colored, printed,
stained, etched or otherwise ornamented or decorated," the cutting, engrav-
ing, etching, etc., thereon must be substantial and sufficient to amount to
an ornament or decoration; otherwise, they are dutiable as plain glass
bottles under paragraph 88.
-Koscherak v. United States, 98 Fed. 596..... ....39 C. C. A. 166
Sheets of celluloid, polished on both sides, are dutiable under the third
clause of paragraph 17 of the tariff act of 1897, as "finished or partly
finished articles," and not under the second clause, which covers celluloid
"rolled or in sheets, unpolished."
-United States v. Eschwege, 98 Fed. 600; Eschwege v. United States,
Id.
.39 C. C. A. 169
Dried lychee, which is Chinese fruit having, when dry, a thin shell inclos-
ing an edible pulp, is dutiable under paragraph 262 of the tariff act of 1897,
as an "edible fruit, dried," and not entitled to free entry under paragraph
559, as a fruit not specially provided for.
-United States v. Wing Wo Chong, 98 Fed. 602.....39 C. C. A. 172
"Dried currants," so called, from the Levantine, which are known to the
trade by some 30 different names, indicating the islands or localities where
grown, and which, although in fact raisins, made from a small grape, con-
stitute the only currants known commercially or imported, are, except
those grown on the island of Zante, entitled to free entry, under paragraph
489 of the free list of the tariff act of 1894, as "fruits,
dried,
not specially provided for," and are not dutiable under paragraph 217,
which covers "plums, prunes, figs, raisins and other dried grapes, including
Zante currants."
-Hills Bros. Co. v. United States, 99 Fed. 264......39 C. C. A. 500
Articles composed of tiles, which are put together in rows before being
fired, their faces forming a plain surface, on which a picture is painted
with brown mineral paint, mixed with oil or water, the tiles being then
separated and fired, by which process the color of the painting is changed
from brown to blue, and the surface of the tile is glazed, after which the
tiles are reassembled and framed, in which condition they are imported,
being used in the frames for wall decoration, or removed and set in man-
tels or wainscoting, are dutiable, under paragraph 94 of the tariff act of
1890, as "tiles glazed, painted or vitrified," and not under paragraph 465,
as "paintings in oil or water colors."
-United States v. Richard, 99 Fed. 268..
Ferrochrome, which is a product obtained by smelting chromic ore, is
dutiable under paragraph 110 of the tariff act of 1894, by reason of its
similarity in use to ferromanganese, covered by such paragraph, and not
under section 3, as a manufactured article not enumerated or provided for.
both articles being used in the manufacture of steel, to produce a tough.
hard quality, the former when the iron ore contains an excess of phos-
phorus. and the latter when it shows an excess of sulphur.
-United States v. Dana, 99 Fed. 433.
Zinc dust, used in dyeing, is entitled to free entry, under paragraph
386 of the tariff act of 1894, as an article in a crude state, used in dyeing,
not specially provided for, and is not dutiable under section 3, as a non-
enumerated manufactured article, nor under paragraph 174 and section 4,
as assimilated to zinc in pigs and blocks.
-United States v. Roessler & Hasslacher Chemical Co., 99 Fed.
552 ...
.....39 C. C. A. 651
"Gold straw braids" and "silver straw braids," composed mostly of hemp
fiber, the remainder being metal, cotton, and glue, are not entitled to free
entry, under Act Cong. Oct. 1, 1890, par. 518, which puts on the free list
braids, plaits, laces, and similar manufactures, "composed of straw, chip,
grass, palm leaf, willow, osier or rattan," suitable for making or ornament-
ing hats, bonnets, and hoods, but are assessable under paragraph 215,
as manufactures in part of metal, not specially provided for.
-Schiff v. United States, 99 Fed. 555....
3. Payment and collection, refunding, and drawback.
Section 23 of the customs administrative act of 1890, which permits an
importer to abandon to the United States all or any portion of the goods
included in any invoice, not less than 10 per cent. of the total value or
quantity of the invoice, and be relieved from the payment of duties on the
portion so abandoned, applies only to an invoice of goods imported in such
condition as would have entitled the importer, under Rev. St. § 2927, for
which said section 23 is a substitute, to claim an allowance for damaged
goods; and an importer of goods not damaged cannot, by an abandonment
of such goods, after they have been seized by the government for an
attempted violation of the customs law, relieve himself from liability for
the duty thereon, or recover the duty paid.
-United States v. One Case Paintings, Engravings, and Manufactures
of Metal, 99 Fed. 426....
.39 C. C. A. 586
§ 4. Recovery of duties paid.
The forfeiture and sale by the United States of imported goods for un-
dervaluation, under the provisions of section 7 of the customs administra-
tive act of 1890, as amended by section 32 of the tariff act of 1897, does
not relieve the importer from liability for the duty thereon, so as to
entitle him to a return of the duty paid. The obligation to pay the duty
is incurred by the act of importation, and the importer is not relieved
from such obligation by the violation of a different provision of the cus-
toms law, although he thereby incurs as a penalty a forfeiture of the
entire importation.
-United States v. One Case Paintings, Engravings, and Manufactures
of Metal, 99 Fed. 426...
..39 C. C. A. 586
Compensation for property taken for public use, see "Eminent Domain." § 1.
§ 1. Grounds and subjects of compensatory damages.
A party to a contract has but one cause of action for its breach, which
is indivisible, and in an action thereon he is entitled to recover whatever
damages he can prove within the rules of evidence. Where, in accordance
with the rules of pleading of the court in which he sues, he sets out a
statement of the facts, he cannot be required by the party guilty of the
breach to elect whether he will claim for losses and expenses incurred on
the faith of the contract, or for the loss of profits, but he may claim for
both; and, in case the profits cannot be proved with sufficient certainty
to warrant a recovery therefor, he may at least recover for the money
and labor reasonably expended in good faith in reliance on the contract.
-Wells v. National Life Ass'n of Hartford, 99 Fed. 222.
39 C. C. A. 476
Plaintiff entered into a contract by which he became the general agent
for defendant (a life insurance company) for a term of years, within a
specified territory. He was to have sole charge of such territory, to devote
his services to the business, establish subagencies at his own expense, and
receive as his sole compensation commissions on the initial and renewal
premiums received from the business he secured. Held, in an action for a
breach of the contract by defendant by transferring the business to other
agents during the term without just cause, that plaintiff was not limited.
as to damages, to compensation for the money and time expended, but was
entitled to claim for loss of commissions, which were by the contract made
the measure of his compensation; that he might show the commissions
which would have accrued to him under the contract from renewal pre-
miums on policies actually taken by him (the presumption being, as be-
tween the parties, that all would be continued in force), and also the
amount of new business done by defendant within the territory through
the new agents, which was proper to be considered by the jury, together
with other relevant evidence, in determining the probable amount of com-
missions which would have been earned but for the breach of the contract
by defendant, and if, on the whole evidence, the jury found that plaintiff
had suffered loss of profits in excess of the amount of his cutlay of personal
services and expenses, he was entitled to recover such excess.
-Wells v. National Life Ass'n of Hartford, 99 Fed. 222.
§ 2. Liquidated damages and penalties.
A provision in a contract for the purchase of a crop of oranges, then
upon the trees, for a lump sum, that the purchaser "is also to pay the
party of the second part $1,500 at the time of making this contract as
part payment of the entire purchase price of said fruit, and, in case the
said party of the first part refuses or fails to comply with the conditions
of this contract, then the said payment of $1.500 is to be forfeited," is
one for a forfeiture, and not for liquidated damages.
-Nichols v. Haines, 98 Fed. 692...
81. Actions for causing death.
Under the Texas statute (Rev. St. 1895, art. 3017) giving a right of action
for actual damages on account of injuries causing the death of any person,
when caused by the negligence or wrongful act of another, the parents of a
minor may recover in such an action for the loss of services of the deceased
during minority, although he was instantaneously killed.
-Sternenberg v. Mailhos, 99 Fed. 43.....
In pleading, see "Pleading," § 1.
§ 1. Construction and operation.
Where a lot, conveyed on condition that it should be used by the gran-
tee for a specified purpose, was washed away or submerged by the action
of a river, before the lapse of a reasonable time within which to comply
with the condition, so as to render a compliance impossible, the title can-
not be recovered by the grantor on the ground of a breach of the condition.
-Union Pac. Ry. Co. v. Cook, 98 Fed. 281; Cook v. Union Pac. Ry.
Co., Id......
...39 C. C. A. 86
Plaintiff conveyed to the Union Pacific Railroad Company, then en-
gaged in building its road, a city lot, on condition that the grantee should
construct and maintain its "road through said tract," otherwise the lot to
revert to the grantor. Held, that the word "road," as therein used, should
be construed to mean not merely the track of the railroad, but the entire
right of way, 200 feet in width, which the company was authorized by its
|