Belcher et al. v. Linn. for that fully appears in the report itself; nor of supplying any omission necessary to make it intelligible, nor to explain any doubtful word, for no such omission or doubt exists. In the case of Van Buren v. Diggs, the contract provided that if the house was not completed at the day specified, there was to be a "forfeiture of 10 per cent. of the whole amount." The defendant sought to prove that the contractor intended this as stipulated damages; but this court held such evidence wholly inadmissible. 11 How., 463. So in Kemble v. Lull, (3 McLean, 274,) it was offered to show what construction was intended by the parties in the use of the words "if in funds," contained in an order for the payment of money. This the court upheld as inadmissible, holding that the words were not ambiguous, and that it was the duty of the court to construe them. So in Newland v. Douglas, (2 John. R., 62,) it was offered to show by the evidence of two of the arbitrators a mistake in the award in their subtraction of figures, but the evidence was rejected as illegal. In the multiplicity of adjudications on this subject, the broad line of separation between simple interpretation of what is in the instrument, and direct evidence of intention independent of the instrument, has been kept steadily in view. As the goods were detained by the collector, without fault on the part of the plaintiff, it is further contended that when the collector at New Orleans levied the duties, they should have been calculated only on such quantity as then remained in his possession. The law levies the duty upon the importer, because he is enabled to make it good from the consumer; but the importer ought not to be held responsible for duties upon goods which, though imported, by reason of the negligent or illegal acts of the Government agents, never came into his possession. Mr. Stanton made the following points: It should be remembered that the plaintiffs showed by parol testimony that, by the original appraisement at New Orleans, the Belcher et al. v. Linn. invoice valuation of their cargoes was increased one-half real per arroba, (64 cents per 25 pounds.) This is equivalent to $1.25 per 500 pounds. But the increased valuation made by the board of general appraisers was only 873 cents per 500 pounds. It is obvious that the alleged excess of duties ($627.41) actually paid by the plaintiffs was less than they would have been required to pay upon the New Orleans appraisement. The excess of duties which that appraisement demanded over the amount due on the invoice valuation was $896.30. Unless, therefore, the original appraisement was superseded by some regular proceeding, the plaintiffs had no right to recover. The first inquiry, therefore, is, whether the appraisement made at New Orleans was defeated by the subsequent proceedings. The plaintiffs appealed from the appraisement made at New Orleans. This appeal was taken under the provisions of the 17th section of the act of August 30, 1842, as modified by the 3d section of the act of March 3, 1851. 9 Stat., 629. Regularly, this appeal should have been determined by a board composed of one merchant appraiser and one of the general appraisers. By the agreement, it was submitted to the board of general appraisers. The appraisement was made at New York upon samples, when, regularly, it should have been made at New Orleans on an inspection of the cargoes. The first question, therefore, presented on this record, is whether, by the agreement to submit the appraisement to the board of general appraisers, the appeal was abandoned. Where the importer, after demanding an appeal, withdraws or declines to prosecute it, the original appraisement stands. Bartlett v. Kane, 16 How., 263. Neither the Secretary of the Treasury nor the collector has the power, with the consent of an importer, to submit the appraisement of goods to any other tribunal than that designated by the law. It is clear that, without such consent on the part of the im porter, the appraisement cannot be made in any other manner than that directed by acts of Congress. The collector cannot Belcher et al. v. Linn. remove a merchant appraiser at pleasure after he has been chosen. Greely v. Thompson, 10 How., 225. The appraisement must in all respects be made in conforınity with the law. Burgess v. Converse, 2 Curtis, 221. It is enough to set aside an appraisement that one of the appraisers did not inspect the goods. -10 Howard, 225. The whole current of decisions establishes the position that the mode of appraisement pointed out in the tariff acts now in force must be observed, and that the Secretary of the Treasury has no power to change it. It is a legitimate conclusion from this, that want of power in that officer to alter the regular mode of appraisement must be alike fatal to any change, whether made with the consent of the importer or not. 2. But suppose the agreement of the 28th September, 1853, to have been valid. The position taken by the plaintiffs in their protest, and by the counsel on the argument, is, that the report of the appraisers conclusively shows that the sum of 87 cents per 500 pounds was added to the invoice value of the sugar by the board of general appraisers, as an export duty. Let us concede, for argument's sake, this position to be correct; what is the consequence? The case, then, stands thus: The board of appraisers have decided that an export duty was, in fact, paid upon these cargoes. The plaintiffs claim the right to show before a jury that no such duty was paid. Can they do this? They certainly cannot, if the finding of that fact was within the jurisdiction of the board of appraisers. Now it is plain, from the provisions of the act of March 3, 1851, (9 Stat., 629,) that the appraisers must not only ascertain the value of the goods, but also ascertain the charges upon them. Their business is not only to find the "actual market value or wholesale price," &c., but also to certify the dutiable value of the goods, which consists of the wholesale price of the goods added to all costs and charges. The case of Samson v. Peaslee, 20 How., 575, is not inconsistent with this view. 33 VOL. XXIV. Belcher et al. v. Linn. The appraised value of the goods added to the costs and charges constitutes the dutiable value, and the appraisers must ascertain both. It was, then, the province of the board of general appraisers, under the agreement, to ascertain the charges to which these importations had been subjected. They found the fact to be, that an export duty was paid. Is not that finding conclusive? Can the plaintiffs be permitted to show that the fact was otherwise? Surely not; for it is certainly settled that the decision of the board upon a matter of fact within their jurisdiction is final. Act of March 3, 1851, sec. 3. 16 Howard, 272. 4 Howard, 327. Stairs et al. v. Peaslee, 18 How., 527. 3. But the report of the board of general appraisers does not show conclusively that the amount added as export duty to the invoice valuation was put on as a charge actually paid upon the goods; and it was proper to admit parol evidence to explain the principles upon which the addition was made. The appraisers were not required by law to make a report. No statement of the details of their proceedings was necessary. Their certificate of the dutiable value of the goods was their appraisement. Act of March 3, 1851, sec. 2, 9 Stat., 629. The report in other respects is not the only legal evidence of the course of their proceedings. The words "to add export duty" do not imply that such duty was assumed to have been paid. The evidence did not contradict the report, but explained what was obscure and ambiguous. The following authorities seem to sustain the position that the evidence was properly admitted. An assistant appraiser proved the calculation upon which the appraisement was based, (in United States v. Southmayd, 9 How., 638;) evidence admitted that only one appraiser inspected the article, (10 How., 228;) to show that appraisement was made by sample, (Greely v. Burgess, 18 How., 413;) to show how examination of pack Belcher et al. v. Linn. ages was made, (20 How., 574.) The principles applicable to awards are analogous. The appraisers are legislative referees. 4 How., 335. 10 How., 240. Arbitrator may be examined concerning the grounds of his award, with his consent. Johnson v. Durant, 4 Car. and Payne, 327, note. 3 Espinasse, 113. 4 Espinasse, 180. Zeigler v. Zeigler, 2 S. and R., 286. In Alden v. Saville, 5 Taunt., 455, a reference to the arbitrator was ordered, requesting him to state upon what grounds he gave damages. 4. In the protest, one ground of objection to the payment of the duties was, that no charge for export duty was made by the Government appraisers at New Orleans. But when an appeal is taken to merchant appraisers, the whole appraisement is open for their consideration. It is totally immaterial to them what was done by the Government appraisers. 2 Curtis, 220. 5. The duties on imports are to be assessed on the quantity of goods actually entered at the custom-house. Marriott v. Brune et al., 9 How., 619. United States v. Southmayd, 9 How., 637. The importation is complete when the goods are entered. The duty is imposed on the goods "imported." Act of 1846. The appraisement being required by law, the detention of the goods gives no cause of action. It can make no difference whether the appraisement results in maintaining the invoice valuation or in diminishing it. The legality of the appraisement does not depend upon the result. In this case, however, the defendant contends that the result shows the invoice valuation to have been too low. The value of the barrels was properly added to the invoice valuation. |