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Opinion of the Court.

1885; and that, if the plaintiffs delivered the whole number of 12,500 cattle, they would be entitled to the two notes of $66,000 each, and also to a deed of the Cook County land, or to the $168,000 in cash, in case the defendant should refuse, or be unable, to make a deed.

The court was, therefore, of opinion that the $168,000 was to be treated as a present or cash payment; that the deficiency in cattle, of $191,150, being 7646 head at $25 per head, which was to be credited to the defendant, should be appropriated in liquidation of the cash payment of $168,000, such credit being thus applied to the cash payment which the defendant would be called upon to make in case he should be unable to make the title at the time called for; that the $168,000 to be liquidated by the land was a present payment, whether made in money or land: that if, by the terms of the contract, the defendant was entitled to a credit equal to or exceeding the $168,000, that credit should be applied thereon, rather than upon the deferred payments to be evidenced by notes, because the $168,000 was a payment down, to be made on the 15th of July, 1885; that, therefore, as $100,000 had been paid in cash on the $100,000 purchase price, leaving $300,000 due, a credit thereon of the $191,150 deficiency in cattle left due to the plaintiffs $108,850, for which amount the court held that the defendant should have given his notes, payable in July and November, 1886, with interest, at eight per cent per annum; and that, as he declined to give such notes, or any notes, such balance became a present demand, for which the plaintiffs could sue.

It therefore ordered judgment for the plaintiffs, for $108,850, with interest at six per cent from July 15, 1885.

Although, as appears by the bill of exceptions, the defendant at the trial introduced evidence, under the objections and exceptions of the plaintiffs, of the circumstances attending the execution of the contract, of the relative situation of the parties, and of the negotiations, correspondence, and interviews between them and their agents, leading up to its execution, to enable the court better to understand and construe the contract, the defendant now seriously alleges as error the admission of such parol evidence. The point is not tenable.

Opinion of the Court.

It appears, from the findings of fact, that the court considered the evidence so introduced by the defendant; and he cannot now object to it.

We are of opinion that the conclusion of law of the Circuit Court, from the findings of fact, was correct. Of course, the credit of $191,150 for the 7646 head of cattle deficient, at $25 per head, was not intended by the contract to be applied on the cash payment of $25,000, made April 16, 1885, or on the payment of $75,000 provided for by the promissory notes made April 16, 1885, and due July 25, 1885. The question of a shortage in the number of cattle was not to be determined, and was not determined, before the 15th of July, 1885, and the contract does not provide for repaying any part of the $100,000. Therefore, the credit of $191,150 could be applied only on the $300,000 remaining unpaid on the 15th of July, 1885. On that day, the payment of $168,000 was to be made. By the contract, if there was an excess of cattle over 12,500 head, the payment to be made by the defendant on that day would be more than $168,000, (exclusive of the $132,000 payable in 1886,) but that excess was to be paid in cash. If there was a shortage in the number of cattle, and a credit to be made to the defendant therefor on the $400,000 purchase price, the amount of that credit was to be made on the 15th of July, 1885, the same day the $168,000 was to be paid. It is clear, therefore, that the amount of the excess was to be added to that payment, or the amount of the credit was to be deducted therefrom. The payment to be made on the 15th of July, 1885, would be greater or less than the $168,000, as the number of cattle exceeded or fell short of 12,500 head. The $108,850 became due July 15, 1885, and the defendant, according to the terms of the contract, ought then to have given his notes therefor, payable, one-half July 1, 1886, and onehalf November 1, 1886. He refused to give such notes. As the payments to be made July 1, 1886, and November 1, 1886, were not due on July 15, 1885, and a vendors' lien was expressly reserved in respect of those payments, there is no solution of the problem, except to deduct from the $191,150 deficiency in cattle the $168,000 payment to be made in land

Counsel for Parties.

or money, July 15, 1885, leaving $23,150, and to deduct that from the $132,000 payable in 1886, leaving $108,850 due to the plaintiffs, with interest from July 15, 1885; for which sum judgment was had. On the facts found, showing that the defendant was not prepared or able to deliver to the plaintiffs, on the 15th of July, 1885, a deed for the 84 acres of land in Cook County, Illinois, the $168,000 became on that day a cash payment. The judgment of the Circuit Court is

Affirmed.

ROBERTSON v. GERDAN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE

SOUTHERN DISTRICT OF NEW YORK.

No. 56, Argued December 4, 1889. – Decided December 16, 1889.

Pieces of ivory for the keys of pianos and organs, matched to certain oc

taves, sold to manufacturers, who scrape them to make them adhere to wood, and then glue them to wood, were charged with duty as manufactures of ivory, under Schedule M of section 2504 of the Revised Statutes of 1874, 2d ed. p. 474, and under Schedule N of section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, 22 Stat. 511. The importer claimed that they were liable to a less duty, as musical instruments, under Schedule M of section 2504 of the Revised Statutes of 1874, 2d ed. p. 478, and under Schedule N of section 2502 of the Revised Statutes as enacted by said act of March 3, 1883, 22 Stat. 513. In a suit by him against the collector to recover the alleged excess of duty paid, the court charged the jury that if the articles were made on purpose to be used in pianos and organs, and were used exclusively in them, they were dutiable as musical instruments and not as manufactures of ivory; Held, that this was error; and that the articles, as imported, were manufactures of ivory.

Tue case is stated in the opinion.

Mr. Assistant Attorney General Maury for plaintiff in error.

Mr. E. B. Smith for defendant in error. Mr. Stephen G. Clarke filed a brief for the same.

Opinion of the Court.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

on

This is an action brought in the Superior Court of the city of New York, and removed by certiorari by the defendant into the Circuit Court of the United States for the Southern District of New York, by Otto Gerdan against William H. Robertson, collector of customs of the port of New York, to recover duties paid under protest on certain ivory pieces for the keys of pianos or organs, imported into the port of New York, and entered there, some of them in September and October, 1882, and the rest of them in January, October and November, 1884. Upon those imported in 1882, the collector assessed a duty of 35 per cent ad valorem under the provision of Schedule M of section 2504 of the Revised Statutes, 2d ed. p. 474, enacted June 22, 1874, which imposes that rate of duty

“Manufactures of bones, horn, ivory, or vegetable ivory.” On the articles. imported in 1884, the collector assessed a duty of 30 per cent ad valorem, under that provision of Schedule N of section 2502 of the Revised Statutes, as enacted by the act of March 3, 1883, 22 Stat. 511, which imposes that rate of duty on “ bone, horn, ivory, or vegetable ivory, all manufactures of, not specially erumerated or provided for in this act.”

The importer claimed in his protest that the goods imported in 1882 were subject to a duty of 30 per cent ad valorem, under that provision of Schedule M of section 2504 of the Revised Statutes of 1874, 2d ed. p. 478, which imposes that rate of duty on “Musical instruments of all kinds;" and that the goods imported in 1884 were liable to a duty of 25 per cent ad valorem, under that provision of Schedule N of section 2502 of the Revised Statutes, as enacted by the said act of March 3, 1883, 22 Stat. 513, which imposes that rate of duty on “ Musical instruments of all kinds."

On appeal, the decision of the collector was affirmed by the Secretary of the Treasury, and suit was brought in due time.

The plaintiff had a verdict at the trial, and judgment was entered for him, for $345.50, to review which the defendant has brought a writ of error.

The bill of exceptions states as follows: “Plaintiff called

Opinion of the Court.

as his only witness George W. Clark, who, being duly sworn, testified that he was in the employ of plaintiff; that he identified the samples produced as similar to the articles which were imported; that they are pieces for the keys of pianos or organs; that they come in packages and are matched to certain octaves for certain instruments, to wit, organs and pianos, five octaves for organs and seven octaves for pianos, and are glued on the keys; that they are sawed and cut in a particular shape for that purpose, and are tapered in thickness, so that the end meets and the shaft comes in between. Q. They are used for no other purpose than for pianos and organ keys? A. That is it, sir. On cross-examination this witness testified that he had never put them on pianos or organs; that there are different grades and two sizes of the articles in question. Q. Do you know how they are put on the piano? A. We don't do that; we sell to the piano makers and key-board makers. I have seen it done. They scrape them to make them hold to the wood; then they are put on the key-board, and then sawed out and stuck on in that way on a large board, and then sawed out, and this, the ivory piece, is then glued on top of it, and then it is polished. Q. Are the corners rounded off? A. We don't do that; we sell to the makers. Q. As a matter of fact, don't you know that the outside corners are rounded off! A. I have seen it so, yes, sir; on the pianos. We are not piano makers; we sell to the piano and key-board makers.” No other evidence was offered on either side.

The defendant asked the court to direct a verdict in his favor, because (1) the imported article was not a musical instrument, and (2) it was not a completed, indispensable part of a musical instrument. This motion was denied, and the defendant excepted. The defendant then asked the court to charge the jury that, in order to find for the plaintiff, they must find that the imported articles were completed, indispensable parts of a musical instrument. But the court charged that if the articles were used exclusively for pianos and organs, the jury should return a verdict for the plaintiff; if not, for the defendant; to which instruction the defendant excepted. The court also charged that if the articles were made on pur

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