Cohn v. Erhardt

• Decision Date: 01 December 1890
• Citation: 44 F. 747
• Parties: COHN et al. v. ERHARDT.
• Court: U.S. District Court — Southern District of New York

44 F. 747

COHN et al. v. ERHARDT.

United States Circuit Court, S.D. New York.

December, 1890

Charles Curie and Wm. Wickham Smith, for plaintiffs.

Edward Mitchell, U.S. Atty., and James T. Van Rensselaer, Asst. U.S. Atty., for defendant.

LACOMBE, Circuit Judge.

The articles here enumerated are indisputably 'japanned.' As such they are within the phrase 'japanned ware of all kinds' in the tariff act. To take them out of that clause, trade testimony is all that is relied-upon. The extreme extent to which such testimony goes in this case is this: that in a branch of trade which deals in a very large number of articles, those articles which it deals in and which are japanned are called 'japanned ware' to distinguish them apparently from the articles in which that trade deals which are not japanned. It appears, however, by the testimony of the same witnesses that there are a very great many other goods which are japanned in which they do not deal. What the particular trade that deals in those other goods calls them does not appear; but that they are 'japanned ware,' within the ordinary meaning of the term, is plain. It seems, then, that the trade testimony is not sufficient to show that, in the general trade and commerce of this country, the words 'japanned ware' have received such an exclusive and peculiar trade meaning that they cover only the articles of tin-ware, or what not, that the witnesses here have told us that they dealt in, and do not cover the other articles of metal, of wood, etc., which, it appears, are dealt in in trade, and are japanned, and which are in the ordinary use of the English language, very plainly covered by the phraseology 'japanned ware of all kinds.' For that reason I deny the motion of the defendant, and direct a verdict for the plaintiffs.