United States v. O'Neill

• Decision Date: 02 May 1904
• Docket Number: 19.
• Parties: UNITED STATES v. O'NEILL et al.
• Court: U.S. Court of Appeals — Third Circuit

129 F. 909

UNITED STATES v. O'NEILL et al.

No. 19.

United States Court of Appeals, Third Circuit.

May 2, 1904

Wm. M Steward and James B. Holland, for plaintiff in error.

John G Johnson, for defendants in error.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

This was an action of assumpsit, brought by the United States to recover a balance of customs duties, amounting to $722,72 alleged to be due by the firm of O'Neill Bros., of the city of Philadelphia. The case was tried before McPherson J., without a jury, in accordance with the provisions of section 639, Rev. St. After hearing and argument, the learned judge directed judgment to be entered in favor of the defendant upon his findings of fact and law, as set out in his opinion, of which the following is a copy:

'This suit is brought to recover a balance of tariff duties for which the defendants are alleged to be liable. The case having been tried by the court without a jury, I find the following facts:

'The defendants are merchants in the city of Philadelphia, and as part of their business buy and sell cotton waste and woolen waste. Shortly before October 1, 1899, they received a sample of cotton waste from the Kingston Hosiery Company, doing business in the Province of Ontario, and ordered fifty bales to correspond with the sample. On October 1st the hosiery company delivered to the Grand Trunk Railway fifty bales of waste consigned to 'J. D. Lewis, Suspension Bridge, Messrs. O'Neill Brothers, Philadelphia.' This bill of lading was indorsed by J. D. Lewis: 'Deliver to J. McI. McNiven.' When the goods arrived at Suspension Bridge, McNiven entered them for consumption, declaring, among other things, that 'to the best of my knowledge and belief, O'Neill Brothers, Philadelphia, Pa. are the owners of these goods, wares, and merchandise mentioned in the annexed entry.' The bales were afterwards examined by a customs officer, who discovered that four bales were nearly all wool, and forty-six bales were cotton and wool mixed, although mostly cotton. Cotton waste is admitted free of duty, while woolen waste, or woolen and cotton mixed, is charged with a duty of ten cents a pound. The net weight of these bales being eight thousand five hundred pounds, a duty of $850 was accordingly imposed and payment was demanded from the defendants. To this they replied that their order had been given upon a sample that contained nothing but pure cotton, and that if the bales which were shipped contained wool the hosiery company had sent something that they had not ordered, and therefore that they did not hold themselves responsible for any duty that might be collectible upon the shipment. The goods were stored by the customs authorities for more than a year, and were then sold to enforce payment of the duty, producing the net sum of $127.28, thus leaving an unpaid balance of $722.72, for which amount the present suit is brought. So far as appears from the evidence, neither Lewis nor McNiven was an agent of the defendants, either general or special, and neither had any authority, express or implied, to enter the goods for consumption. The defendants declined to accept the bales, and paid no further attention to the shipment. They had not ordered the goods that were sent, and very properly refused to receive them or to make themselves in any way responsible for their care of custody.

'Upon these facts, it seems to me that the defendants are not liable for the balance of the duty. It is true that the act of 1890, 1 Supp.Rev.St. 744 (U.S. Comp. St. 1901, p. 1886), declares that 'all merchandise imported into the United States shall, for the purpose of this act, be deemed and held to be the property of the person to whom the merchandise may be consigned.' It is also true that the bill of lading shows that the Grand Truck Railway named O'Neill Brothers as the ultimate consignees of the merchandise. But under the other facts, I do not think that the act should be so construed as to embrace the present defendants. They did not

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