United States v. Bishop

• Decision Date: 07 September 1903
• Docket Number: 1,877.
• Citation: 125 F. 181
• Parties: UNITED STATES v. BISHOP.
• Court: U.S. Court of Appeals — Eighth Circuit

125 F. 181

UNITED STATES v. BISHOP.

No. 1,877.

United States Court of Appeals, Eighth Circuit.

September 7, 1903

Syllabus by the Court.

Where at the close of a trial by a jury, each party requests a peremptory instruction in his favor, and the court grants one of the requests, the parties are estopped from claiming that any question should have been submitted to the jury. All disputed questions of fact are conclusively determined in favor of the successful party, and the only questions open to review in the appellate court are, was there any substantial evidence in support of the court's finding of fact? and was there any error in the declaration or application of the law?

The consignee of imported goods is deemed the owner for the purpose of the collection of the duties thereon, under section 3058, Rev. St., as amended by Act Feb. 23, 1887, c 221, 24 Stat. 415 (U.S. Comp. St. 1901, p. 2005), and it is no defense to an action against the consignee for such duties that the consignor or any other party who, at the request or with the consent of the consignee, procured the importation failed to obey the latter's instructions or to comply with the terms of the contract between them.

Under section 32 of the tariff law of July 24, 1897, c. 11, 30 Stat. 212 (U.S. Comp. St. 1901, p. 1892), the fraudulent intent of the owner or of his authorized agent in entering the imported merchandise is an indispensable condition of the right of the government to forfeit the goods for undervaluation.

But an action to recover the additional duties accruing upon an undervaluation under this section of the law may be maintained against the consignee without proof of any fraudulent intent by the owner, the consignee, or the agent in making the entry. Good faith and innocence constitute no defense to such an action.

Charles C. Houpt, for the United States.

Francis B. Hart, for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and SHIRAS District judge.

SANBORN Circuit Judge.

This is an action by the United States to recover of James H. Bishop, a citizen of the state of Minnesota, the duty upon a car load of calcium carbide, under section 7, c. 407, of the 'Act to simplify the laws in relation to the collection of the revenues,' approved June 10, 1890, 26 Stat. 134, as amended by the 'Act to provide revenue for the government and to encourage the industries of the United States,' approved July 24, 1897, c. 11, Sec. 32, 30 Stat. 212 (U.S. Comp. St. 1901, p. 1892). Section 32 of the tariff law of 1897 provides that section 7 of the act of June 10, 1890, c. 407, 26 Stat. 134, shall be amended so as to read as follows:

'Sec. 7. That the owner, consignee, or agent of any imported merchandise which has been actually purchased may, at the time when he shall make and verify his written entry of such merchandise, but not afterwards, make such addition in the entry to the cost or value given in the invoice or pro forma invoice or statement in form of an invoice, which he shall produce with his entry, as in his opinion may raise the same to the actual market value or wholesale price of such merchandise at the time of exportation to the United States, in the principal markets of the country from which the same has been imported; but no such addition shall be made upon entry to the invoice value of any imported merchandise obtained otherwise than by actual purchase; and the collector within whose district any merchandise may be imported or entered, whether the same has been actually purchased or procured otherwise than by purchase, shall cause the actual market value or wholesale price of such merchandise to be appraised; and if the appraised value of any article of imported merchandise subject to an ad valorem duty or to a duty based upon or regulated in any manner by the value thereof shall exceed the value declared in the entry, there shall be levied, collected and paid, in addition to the duties imposed by law on such merchandise, an additional duty of one per centum of the total appraised value thereof for each one per centum that such appraised value exceeds the value declared in the entry, but the additional duties shall only apply to the particular article or articles in each invoice that are so undervalued, and shall be limited to fifty per centum of the appraised value of such article or articles. Such additional duties shall not be construed to be penal, and shall not be remitted, nor payment thereof in any way avoided, except in cases arising from a manifest clerical error, nor shall they be refunded in case of exportation of the merchandise, or on any other account, nor shall they be subject to the benefit of drawback: provided, that if the appraised value of any merchandise shall exceed the value declared in the entry by more than fifty per centum, except when arising from a manifest clerical error, such entry shall be held to be presumptively fraudulent, and the collector of customs shall seize such merchandise and proceed as in case of forfeiture for violation of the customs laws, and in any legal proceeding that may result from such seizure, the undervaluation as shown by the appraisal shall be presumptive evidence of fraud, and the burden of proof shall be on the claimant to rebut the same and forfeiture shall be adjudged unless he shall rebut such presumption of fraudulent intent by sufficient evidence. The forfeiture provided for in this section shall apply to the whole of the merchandise or the value thereof in the case or package containing the particular article or articles in each invoice which are undervalued.'

The title 34 of the Revised Statutes is entitled 'Collection of Duties upon Imports.' Section 3058 of chapter 10 of that title as amended by the act of February 23, 1887, c. 221, 24 Stat. 415 (U.S. Comp. St. 1901, p. 2005), provides that 'all merchandise imported into the United States shall, for the purpose of this title, be deemed and held to be the property of the person to whom the merchandise may be consigned.' be consigned.

In the action before us the United States alleged in its complaint, and the defendant, Bishop, denied in his answer, that the latter imported from St. Catharines, in the province of Canada, into the United States, 300 iron drums or cans, 50 wooden cases, and 32,400 pounds of calcium carbide; that the defendant's agent, Henderson, declared the foreign value of these goods to be $326; that the foreign value was $1,106; that the goods were properly appraised; and that the duty on them, under section 32 of the tariff law of July 24, 1897, c. 11, 30 Stat. 212 (U.S. Comp. St. 1901, p. 1892), which has been quoted above, amounted to $829.50. Upon these issues the case was tried to a jury, and at the close of the evidence the government requested the court to give to the jury a peremptory instruction to return a verdict in its favor, and the defendant besought the court to peremptorily direct the jury that the plaintiff was not entitled to recover. Thereupon the court instructed the jury to return a verdict for the defendant, and the judgment upon that verdict is challenged by the writ of error in hand.

The requests of both the parties to this action for peremptory instructions in their favor relieve us from the consideration of the question whether or not there was any issue of fact which should have been submitted to the jury, and make the instruction of the court a conclusive finding in favor of the defendant on every question of fact at issue in the case. Where each party requests the court to direct the jury to find a verdict in his favor, he thereby concedes that the case presents no question for the jury, waives his right to their decision of every issue therein, and requests the court to find the facts and declare the law. And when, pursuant to such requests, the court accepts these waivers, and by its peremptory instruction determines the questions of fact and of law in favor of one of the parties, both parties are estopped from assailing or reviewing its finding upon disputed issues of fact, and are limited in the appellate court to a review of the two questions, was there any substantial evidence to sustain the court's finding of facts? and was there any error in its declaration or application of the law? Beutell v. Magone, 157 U.S.154, 157, 15 Sup.Ct. 566, 39 L.Ed. 654; The City of New York, 147 U.S.72, 77, 13 Sup.Ct. 211, 37 L.Ed. 84; Laing v. Rigney, 160 U.S. 531, 16 Sup.Ct. 366, 40 L.Ed. 525; King v. Smith, 110 F. 95, 97, 49 C.C.A. 46, 48, 54 L.R.A. 708; The Francis Wright, 105 U.S. 381, 26 L.Ed. 1100; Merwin v. Magone, 70 Fed.776, 777, 17 C.C.A.361, 362; Magone v. Origet, 70 F. 778, 781, 17 C.C.A. 363, 366; Chrystie v. Foster, 61 F. 551, 9 C.C.A. 606; Stanford v. McGill (N.D.) 72 N.W.938, 952; Mayer v. Dean, 115 N.Y. 550, 22 N.E. 261, 5 L.R.A. 540; Provost v. McEncroe, 102 N.Y. 650, 5 N.E. 795.

In this state of the case the first question for consideration is whether or not there was any evidence to support a finding in favor of the defendant upon the issues of fact presented by the pleadings. The act of 1887, 24 Stat. 415 (U.S. Comp. St. 1901, p. 2005), declares that for the purpose of the collection of duties all merchandise imported into to whom it is consigned, and the act of July 24, 1897, c. 11, Sec. 32, 30 Stat. 212 (U.S. Comp. St. 1901, p. 1892), provides that the owner, consignee, or agent shall pay the duties specified. In view of these provisions of the acts of Congress, there were but two material issues of fact presented by the pleadings in this case, and these were (1) whether or not the defendant, Bishop, was the party to whom the calcium carbide was consigned; and (2) whether or not the calcium carbide was so undervalued that the $829.50...