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per pound if dyed in the piece, as provided in said paragraph 387. Whether it should be 50 or 60 cents a pound he could readily ascertain by looking at his sample. It was evident from the sample produced at the hearing that it was not dyed in the piece, but was in the gum. The error in the use of the word "dyed” was evidently not misleading, and was harmless. Former litigation must be construed to have established beyond further question that the fabrics made of this material do not come within the provisions of paragraph 311. The use of the word “dyed” in the protest thus—“being woven fabrics in the piece, dyed, weighing,” etc.- I regard as superfluous, or at least a clerical error.

Wherefore the decision of the Board of Appraisers in overruling the protest is reversed.

A. A. VANTINE & CO. v. UNITED STATES.

(Circuit Court, S. D. New York. May 17, 1907.)

No. 3,576. 1. CUSTOMS DUTIES—CLASSIFICATION-APPLIQUÉD GOODS-TEMPORARY CONDI

TION.

Fabrics to which tinsel cord has been attached by an appliqué process, resulting in goods which are fairly ornamental, durable, permanent, and salable, but not in the highest sense, are articles “appliquéd,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule L, par. 390, 30 Stat. 187 (U. S. Comp. St. 1901, p. 1670], though only 60 per cent. of the material imported was used in the form in which imported; the cord being removed from the remainder because the goods were more salable in

that condition, 2. SAME-TEMPORARY CONDITION OF MERCHANDISE-SUBTERFUGE.

A collector of customs excluded goods which had been cheaply appliquéd from a tariff provision for “appliquéd” articles, on the ground that the appliqué feature was added to secure a lower rate of duty than would be applicable if they were imported plain. Held, that as the greater portion of the goods were sold in the condition in which imported, and the appliqué work was not done solely as a subterfuge to obtain the lower duty, they should have been classified as “appliquéd.” On Application for Review of a Decision of the Board of United States General Appraisers.

For decision below, see G. A. 5,688 (T. D. 25,330), affirming the assessment of duty by the collector of customs at the port of New York.

The goods in controversy were described by the Board as follows: "This merchandise consists of woven fabrics of silk in the piece, boiled off, and having a cotton cord loosely wound with gilt paper sewed upon the fabric with a colored thread. These cords are doubled and run lengthwise of the fabric at distances varying from about 6 to 18 inches apart, and are looped in loops of a variety of shapes and sizes at irregular intervals of from 9 to 12 inches, without design or the least semblance of regularity."

The Board found that these materials had been temporarily put in the appliquéd form for the purpose of making them subject to a duty lower than that to which they would be liable if classified as silk fabrics, and that they were not in "a permanent condition either of their manufacture or sale,” and held that “the dutiable character of merchandise is determined by its form when made up into a completed article, and not as it may appear by reason of changes made thereafter, effecting a temporary condition during importation in order to avoid duties imposed by law.”

D. Macon Webster, for importers.
J. Osgood Nichols, Asst. U. S. Atty.

PLATT, District Judge. The merchandise in question was assessed for duty as woven fabrics of silk, boiled off, at the rate of $3 per pound, under the provisions of paragraph 387 of the tariff act of July 24, 1897, c. 17, 30 Stat. 186 [U. S. Comp. St. 1901, p. 1669], and is claimed properly dutiable at the rate of 60 per cent, ad valorem, either directly or by similitude, by virtue of section 7, as "articles appliquéd, made of silk or of which silk is the component material of chief value, not specially provided for” under the provisions of paragraph 390 of said act. The protest sets forth other claims, none of which were insisted upon at the trial. The Board of General Appraisers overruled the protest and sustained the assessment of duty by the collector. The importer appeals to this court.

In 1902 the same Board, in G. A. 5,202 (T. D. 23,977), found the same merchandise to be appliquéd. Now, upon further consideration, it has reached the opposite conclusion. If the tinsel cord which appears on the silk were a flimsy, impracticable, useless appliance, and had been put upon the silk after manufacture solely as a subterfuge, to be stripped off after the merchandise had been safely lodged in the control of the importer, the decision of the Board would commend itself to my judgment. The evidence before the Board, coupled with that taken in court, does not bring my mind to such a conclusion.

The merchandise as imported may not be in the highest sense ornamental, durable, permanent, and salable. It is, however, fairly so; and in those respects only differs from Exhibit 20 in suit, concededly an appliquéd article, in degree, if it differs at all. The testimony shows that 60 per cent. of the importation was used as it came, and that the cord was removed from the balance because in that condition it found a readier sale in the market. As between plain silk,

As between plain silk, boiled off, and silk appliquéd, it deserves the latter classification.

The decision of the Board of General Appraisers is reversed.

MORSE DRY DOCK & REPAIR CO. V. MUNSON S. S. LINE.

(District Court, S. D. New York. June 6, 1907.) ACCOUNT STATED-WHAT CONSTITUTES.

Where the repairer renders accounts for the work done and materials furnished and the owner of the vessels accepts the accounts and uses them to obtain its pay from the Government, to which they were chartered, upon assurances of correctness, and an examination of the accounts by the agents of the Government follows, the accounts will be deemed stated between the parties and a recovery for the full amount allowed without reduction for a commission claimed by the respondent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 1, Account Stated,

$$ 30–40.]
(Syllabus by the Court.)

In Admiralty.
Armstrong, Brown & Boland, for libellant.
Wheeler, Cortis & Haight, for respondent.

ADAMS, District Judge. This action was brought by the Morse Dry Dock and Repair Company against the Munson Steamship Line to recover a balance of $40,978.40 claimed to be due for repairs made on the steamships Bergen, Jacob Bright, Cubana and Laupar, between the 30th day of September and the 11th day of October, 1906. The libel alleges that bills to the extent of $75,978.40 were incurred on the vessels, of which the sum of $25,000 was paid on the 3rd of November and $10,000 on the 12th of November, leaving the balance due and owing since the 17th of October. The libel further alleges that previous to the furnishing of the work and materials for the vessels, the respondent had chartered them to the United States for various periods and at various rates and as follows:

"That it was agreed between the United States and the respondent that the smaller charter rates on said vessel were to be the normal rates, and that the additional amounts paid for the first fifteen days on each charter were to provide a fund for fitting up said vessels according to specifications, to render them available as transports for United States Army use.

Fifth: That the respondent engaged the libellant to fit up said vessels as aforesaid, and directed the libellant to spare no expense in the procuring of extra and night labor, and materials, to make the said vessels ready in the limited time required by the United States.

Sixth: That libellant employed extra and night labor as directed, and purchased materials on short notice, and performed the work of fitting up said vessels, within the time required by the respondent and the United States, and the reasonable value of such material and services furnished to each ves sel was as follows: To the 'Cubana'....

$21,522 56 To the 'Bergen'..

15,362 29 To the 'Laupar'.

13,961 18 To the ‘Jacob Bright'..

25,132 37 Seventh: That itemized bills for such work and materials against each vessel as aforesaid were delivered by the libellant as to the respondent between the 17th day of October, 1906, and the 20th day of October, 1906.

Eighth: That repeatedly between the 17th day of October, 1906, and the 26th day of December, 1906, the respondent admitted the said bills to be correct, and promised to pay on account of same, and to pay the bills in full as soon as the respondent received from the United States the amounts due to the respondent.

Ninth: That said bills so delivered to the respondent by the libellant, were by respondent presented to the United States, and were asserted, and certified by the respondent to be correct, and payment thereof demanded upon the ground that the extra charter monies aforesaid, agreed upon to be paid for fitting up said vessels, were insufficient to pay for same, because of the extra work not called for in the specifications, and extraordinary expenses incurred in complying with the demands of the United States in getting the said repairs completed within the time designated by the said United States, and that respondent was required to pay the said bills to the libellant; and that thereupon, pursuant to said demand, and on or about the 26th day of December, 1906 the United States paid to the respondent for the work and materials furnished by the libellant, the following amounts for each vessel:

'Cubana,' $9,042.25, besides the sum of $12,375, extra charter money previously paid.

'Bergen, $4,428.25, besides the sum of $9,750, extra charter money previously paid.

‘Laupar,' $5,817.38, besides the sum of $8,250, extra charter money previously paid.

'Jacob Bright,' $11,362.62, besides the sum of $13,500, extịa charter money previously paid.

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Tenth: That the respondent collected from the United States as aforesaid, the full amount of libellant's said bills, except for certain items aggregating about $1,452.90, which were for repairs or improvements to the ships not properly chargeable to the United States, but the respondent has refused to pay the libellant the aforesaid balance due to the libellant."

The answer denies that the total value of the repairs amounted to $75,978.40 or that the sum of $40,978.40 is due and makes some general denials, alleging that the libellant's charges were excessive and exorbitant and the respondent never stated that the bills would be paid and as follows:

"Tenth: Further answering the libel herein, and as a separate and distinct defense thereto, the respondent alleges that at the time the charter parties referred to, were entered into between the United States Government and the respondent, the Government's representative stated to the respondent that it would be necessary to make extensive repairs and alterations to said vessels to fit them for the Government's purposes. He requested respondent to undertake the supervision of said repairs, to see that said repairs were properly carried out, and that the work was pushed with all possible speed. It was also agreed between the Government's representative and the respondent that the respondent should be paid a reasonable compensation for its services in the matter of such supervision. Upon the completion of the work, the bills as above specified, were rendered by the libellant to the respondent, and were at once objected to by the respondent, who stated to the libellant that said bills were excessive and exorbitant. The libellant thereupon informed the respondent that if the Government would provide the respondent with funds sufficient to pay said bills the libellant would then take up the matter of the adjustment of said bills with the respondent, and make such reduction as would be reasonable and fair under all the circumstances. Said bills were then exhibited to the Government's representative who stated to the respondent that said bills were excessive and exorbitant. It was understood between the respondent and the Government's representative that the amount of said bills should be paid by the Government to the respondent, and that the respondent should then obtain from the libellant a reduction of said bills to a figure which should seem fair and reasonable, and that such reduced annount should be paid to libellant. Immediately thereafter the respondent requested the libellant to make a reasonable reduction from the amount of said bills, but the libellant has refused to make any reduction whatever, and has demanded the payment of said bills in full. The respondent has at all times been ready and is now ready and willing to pay the libellant an amount which shall be fair and reasonable compensation for the labor, material and services furnished by the libellant to the respondent, and is content to leave to this Honorable Court the determination of said amount.

Wherefore the respondent prays that this Honorable Court will be pleased to inquire into the matters herein set forth, and will fix and determine the fair and reasonable amount due from the respondent to the libellant by reason of the matters aforesaid.”

The testimony on the part of the libellant shows that four bills covering the repairs to the steamers were duly rendered to the respondent and that the bookkeeper went to its office for the purpose of making some alteration in form, as requested by the respondent, and he then saw the Secretary of the corporation, Mr. Bromell, who said that the bill seemed to be all right but there was one in which he wished that the regular time and overtime of the workmen should be put in separate bills. The change was made and there was no further objection to the bills. Another witness was Mr. Morse, the general manager of the libellant, who said he called to see Mr. Bromell, who told him that he had not had time to go through the accounts thoroughly

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but would pay $25,000 on account and take up the matter for final settlement when the Government had paid; that Mr. Bromell then asked what there was in the bills for them and they ought to have ten

Mr. Morse replied that he was crazy, that they only made twelve per cent. and could not run their plant on two per cent. Mr. Bromell then said we can not give you more than $25,000 but would take up the matter with the libellant again and in the meantime Mr. Morse had better speak to his company about it which he promised to do; that Mr. Bromell did not make any statement that the bills were wrong; that on the 7th of November Mr. Morse cailed upon Mr. Bromell again and told him that he had put the matter up to his company and they had decided that if the Munson Company would pay the bills in full at once, they would be allowed five per cent., but Mr. Bromell refused to discuss that proposition saying:

“We are in your hands. We can't do that, we have not received the money from the Government but the commission will be optional with you when it is finally settled."

Mr. Morse then asked for another payment on account the reply to which was

"We can't give you any money today, but on Friday we will give you $20,000 more."

On that day a representative of the libellant was sent to the respondent but he was told that it could not pay the $20,000, and subsequently Mr. Morse had a conversation with Mr. Bromell in which he charged the latter with not keeping his agreement to which Mr. Bromell replied:

"I am not the whole show. Mr. Munson dont want to pay any more money until we get some from the Government, but probably next week we can give you some more."

And the next week the respondent did pay $10,000. About the 26th of December Mr. Bromell telephoned that he wished to make a settlement and Mr. Morse called upon him when the former said it wanted ten per cent off the bills, to which Mr. Morse replied:

"You know what I told you before, that we would give you five per cent if you advanced the money and we didnt carry it. Our company will give you about two per cent, which is $1,600, and that is all they will give. I have discussed the matter with them."

He refused and said if it did not give the respondent the commission, it would not pay the bills. He further testified that at none of their interviews was any objection made to the size of the bills; it was simply what it could get off for itself; that there was never any question as to the correctness of the bills. The witness then produced a copy of a letter from Mr. Bromell, with a proposed form of letter from the libellant to the respondent as follows:

"New York, December 8, 1906. Morse Dry Dock & Repair Company Mr. E. P. Morse, General Manager

Foot 56th St., Brooklyn, NY Dear Sir:

The Quartermaster's Department at Washington has returned to the Quartermaster in New York, accounts for extraordinary charges in the fitting up of the 'Cubana,' 'Bergen,' 'Laupar' and 'Jacob Bright asking for an explana

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