Taylor v. Treat
| Decision Date | 07 March 1907 |
| Parties | TAYLOR et al. v. TREAT. |
| Court | U.S. District Court — Southern District of New York |
Comstock & Washburn (Albert H. Washburn, of counsel), for plaintiffs.
D Frank Lloyd, Asst. U.S. Atty., and Charles Duane Baker, for defendant.
The war revenue act of 1898 (Act June 13, 1898, c. 448, 30 Stat. 463 (U.S. Comp. St. 1901, p. 1654)), provides for payment, by cancellation of internal revenue stamps, of a certain tax on 'sparkling or other wines.' Plaintiffs are importers of and dealers in Italian vermuth, and allege that, while the act above referred to was in force, the defendant, one of the collectors of internal revenue in New York City, compelled them to pay for and affix to bottles of vermuth imported by their firm stamps to the value of $7,603.20, for which amount they bring this suit, alleging that vermuth is not, within the meaning of the statute in question, a 'sparkling or other wine.'
The testimony adduced here has related principally to the nature and commercial designation of vermuth; but a preliminary question is raised as to the sufficiency of plaintiffs' proof that stamps to the value sued for were really bought affixed, and canceled at the cost of the plaintiffs. It is shown that stamps to a larger value than is the subject of this suit were purchased by the plaintiffs, were sent by them to the Italian vermuth manufacturers, and that plaintiffs' importations arrived here with canceled stamps affixed. The money claim in the complaint is arrived at by multiplying the number of bottles imported during the life of the act by the value of each stamp, with proper deductions for purchase of so large a quantity. In my opinion the direct proof of damage is sufficient; but all doubt is resolved by the action of the defendant himself, who certified the amount of the claim in suit to be correct when the usual application for refund was made to the commissioner of internal revenue prior to the institution of this action.
As to the composition and principal ingredients of vermuth, there can be no doubt, whether the French or Italian article be considered. The basis of manufacture is a white wine frequently a blend or mixture of several wines of varying cost, to which is added sufficient alcohol to raise the spirituous proportion to about 15 per cent., and the mixture is completed by the addition of herbs, spices, and sugar in quantities and proportions depending on the manufacturer's taste and tradition-- but always including some wormwood, from the German name for which plant the finished product takes its title-- and both name and thing have been known in the countries of origin for more than 100 years. It is, I think, proven that while both here and abroad vermuth is commonly referred to by that name only, the complete title of the product is in Italy 'vino vermouth,' and in France 'vin de vermouth'-- names sufficiently recognizing its vinous nature. It is not shown to be native to any other countries. In consumption its appears to be used in Latin countries as a beverage in like manner as wines of similar strength, but in the United States it has not received wide recognition except as a component of the native 'mixed drink.' In American commercial usage, as evidenced by trade circulars and advertisements, it is never classed with wines, and if with any other drinkables, with cordials and liquors; but usually it figures alone, as though sui generis. The definitions found in dictionaries describe it as a 'liqueur' (Standard) and 'a sort of mild cordial' (Century). It cannot be both, and I derive from these definitions no other assistance than to note that it is not denominated a wine, nor do the definitions of wine in either dictionary allude to vermuth.
From the evidence of trade usage and nomenclature introduced, I find that there is no general trade consensus of opinion regarding this article. The plaintiffs' witnesses are sure that vermuth is not a wine, and not known or regarded as wine in the United States; but they are largely interested in the event of this suit. Those opposing them too frequently limit their statement that vermuth is a wine to their personal opinion to render it possible for me to believe that they are testifying to any general custom or uniform usage. But a considerable majority of all the witnesses agree that they buy and sell, advertise and drink, vermuth by that name alone. It is urged that this habit means no more than does the custom of alluding to sherry or port by those names without adding the word 'wine'; but this argument does not meet the proven method (above...
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Sterling Cider Co. v. Hassett, 3794.
...to give force to both of these Acts without qualifying in any way the language of the taxing statute. We do not believe that Taylor v. Treat, C.C., 153 F. 656, affirmed 2 Cir., 1908, 166 F. 1021 and Carter v. Liquid Carbonic Pacific Corporation, 9 Cir., 1938, 97 F.2d 1 cited by appellant, c......
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Bercut-Vandervoort & Co. v. United States, C.D. 2344.
...and not at all to it as a vermouth, although that term is as much understood and used in France as in the United States. See: Taylor v. Treat, 153 F. 656, infra. Under these circumstance, we can only conclude that the manufacturer-seller of this product regarded the merchandise as a wine, i......
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