letter of the same date, stating, among other things, as follows: "As to the invoices under consideration I do not feel at liberty to formally withdraw the reports I have already presented, because they were founded on the evidence received on the re-appraisements, and I think it best that they should stand as expressing my convictions based on that evidence. If, however, you are willing to retain them as memoranda for that purpose, and will accept as substitutes therefor the additional reports which I present herewith and have designated as 'amended' reports, I shall feel that I have met, to the best of my ability, the considerations which your letter sets forth.”

The amended report of the general appraiser fixed the value of the merchandise in question in this case at forty-nine francs.

fairly examine the goods, then the verdict need not necessarily follow the appraisement; and that, the general appraiser not having re-examined the goods after he made his first report, the jury was not concluded by his report at forty-nine francs, or the Collector's action thereon.

The court refused to submit the questions aforesaid to the jury or to charge the jury as requested, and the plaintiffs excepted.

The bill of exceptions further states that no claim was made to submit to the jury any question of fraud on the part of the Collector or appraiser, and that no claim was made during the trial that any excluded evidence was offered for the purpose of showing, or did show or tried to show, fraud on the part of the government officers.

Upon the trial of the case the plaintiffs offered in evidence the record of the proceedings before the merchant appraiser and the general appraiser, including the testimony and various documents before those officers, and subsequently before the Collector. They also offered the testimony of one Hildreth, an expert, and others, to show the foreign market value of gloves at the principal markets of France whence the merchandise in question was imported. They also offered the testimony of the Collector to show all the facts within his knowledge, or officially acted upon by him, in relation to the invoice in question, and to show what his experience was in valuing kid gloves. They also offered to prove the cost of the manufacture of goods similar to those in question. All the evidence so offered was excluded by the court, and the plaintiffs excepted.

It also appears from the bill of exceptions that the plaintiffs' counsel claimed the right to go to the jury upon the questions: 1. Whether the Collector, acting as appraiser, fully and fairly examined the goods. 2. Whether the goods were invoiced at their fair and actual value in the principal markets of France at the time of exportation. 3. Whether a fair examination of the goods was made by the general appraiser, associated with the merchant appraiser, when that matter was referred to him. 4. Whether the facts stated in the protests to the appraisers had been established by the evidence; and 5. Whether the appraisers followed the evidence before them or disregarded it, and whether the Collector disregarded the evidence or was negligent in his appraisal.

The plaintiffs also asked the court to charge the jury that if the Collector did not fully and

The solution of this question depends upon the provisions of the Acts of Congress regulating the subject, which are as follows:

Section 2900 declares in substance that the owner, etc., of any merchandise may, when he shall produce the original invoice to the Collector and make and verify his written entry, and not afterward, make such addition to the cost or value given in the invoice as shall raise the same to the actual market value at the time of importation in the principal markets of the country from which the same has been imported, and the Collector shall cause such actual market value to be appraised, and if such appraised value shall exceed by ten per centum or more the value declared in the entry, then there shall be collected in addition to the duties imposed by law a duty of twenty per cent ad valorem on such appraised value.

Section 2902 declares that: "It shall be the duty of the appraisers of the United States and every of them, and every person who shall act as such appraiser, or of the collector and naval officer, as the case may be, by all reasonable ways and means in his or their power, to ascertain, estimate and appraise the true and actual market value and wholesale price, any invoice or affidavit thereto to the contrary notwithstanding, of the merchandise at the time of exportation and in the principal markets of the country whence the same has been imported into the United States, and the number of such yards, parcels or quantities, and such actual market value or wholesale price of every of them, as the case may require.'

Section 2906 provides that " When an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by, or directed to be estimated or based upon, the value of the square yard, or of any specified quantity or parcel of such merchandise, the collector * * * shall cause the actual market value or wholesale price thereof, at the period of exportation to the United States, in the principal markets of the country from which the same has been imported to be ap

test of any money as duties, when such amount of duties was not or was not wholly authorized by law, may maintain an action, which shall be triable by jury, to ascertain the validity of such demand and payment of duties, and to recover back any excess so paid; but no recovery shall be allowed in such action unless a protest and appeal shall have been taken as prescribed in section 2931.

The argument is that by these sections the appraisement which had been declared final by section 2930 is opened for review by a jury trial. Such is not, in our opinion, a fair construction of this legislation. Considering the Acts of Congress as establishing a system, and giving force to all the sections, its plain and obvious meaning is that the appraisement of the customs officers shall be final, but all other questions relating to the rate and amount of duties may, after the importer has taken the prescribed steps, be reviewed in an action at law to recover duties unlawfully exacted. The rate and amount of duties depends on the classification of the imported merchandise; that is to say, on what schedule it belongs to. Questions frequently arise whether an enumerated article belongs to one section or another, and section 2499 of the Revised Statutes provides that there shall be levied on every non-enumerated article which bears a similitude either in material, quality, texture or the use to which it may be applied, to any enumerated article chargeable with duty, the same rate of duty which is levied and charged on the enumerated article which it most resembles in any of the particulars before mentioned. In determining the rate and amount of duties, the value of the merchandise is one factor, the question what schedule it properly falls under is another.

made by the merchant and general appraisers, and that his appraisement at forty-nine francs was beyond his powers and unauthorized by law and, consequently, void. Without deciding whether this construction of the law is the correct one, we reply that the bill of exceptions shows that after making his first report, the general appraiser filed an amended report, in which he placed his valuation at forty-nine francs, which was adopted by the Collector. The right of the appraiser to amend his report was distinctly recognized in this court in Bartlett v. Kane, ubi supra. The informal character of his amended report could not affect the power of the Collector to act in the premises.

Plaintiffs in error contend further, that a denial of the right to bring an action at law to recover duties paid under an alleged excessive valuation of dutiable merchandise, is depriving the importer of his property without due process of law and is, therefore, forbidden by the Constitution of the United States. The cases of Murray's Lessee v. Hoboken L. & I. Co., 18 How., 272 [XV., 372]; and Springer v. U. S., 102 U. S., 586 [XXVI., 253] are conclusive on this point against the plaintiffs in error.

We find no error in the record. The judgment of the Circuit Court must, therefore, be affirmed. True copy. Test: James H. McKenney, Clerk, Sup. Court, U. S.

KELLOGG BRIDGE COMPANY, Piff.

in Err.

V.

THOMAS H. HAMILTON.

(See S. C., Reporter's ed., 108-119.)

This

a field left for the operation of the sections on which the plaintiffs in error rely. Questions relating to the classification of imports and, consequently, to the rate and amount of duty, are open to review in an action at law. construction gives effect to both provisions of the law. If we yield to the contention and construction of plaintiffs in error, we must strike from the statute the clause which renders the valuation of dutiable merchandise final.

We are of opinion, therefore, that the valuation made by the customs officers was not open to question in an action at law, as long as the officers acted without fraud and within the power conferred on them by the statute. The evidence offered by the plaintiffs and ruled out by the court tended only to show carelessness or irregularity in the discharge of their duties by the customs officers, but not that they were assuming powers not conferred by the statute; and the questions which the plaintiffs in error proposed to submit to the jury were in the

view we take of the statute, immaterial and irrelevant.

The plaintiffs in error make the further point that the merchant appraiser having appraised the goods in question at forty-two francs, and the general appraiser at fifty-two francs, the law, which made it the duty of the Collector to decide between them, required him to adopt one valuation or the other and did not authorize him to fix a valuation of his own between those

caveat emptor.

A bridge company, having partially executed a contract for the construction of a bridge, entered into a written agreement with a person whereby the latter undertook for a named sum, and within a specified time, to complete its erection. The subcontractor agreed to assume and pay for all work done and material furnished up to that time by the company. Assuming this work to have been sufthe sub-contractor proceeded with his undertaking, ficient for the purposes for which it was designed, but the insufficiency of the work previously done by the company was disclosed during the progress of the erection of the bridge. No statement or representation was made by the company as to the quality of the work it had done. Its insufficiency, however, was not apparent upon inspection, and could not have been discovered by the sub-contractor until actually tested during the erection of the bridge; held, that the law implied a warranty that the work sold or transferred to the sub-confor which the company knew it was designed. tractor was reasonably sufficient for the purposes

[No. 59.]

Submitted Oct. 31, 1883. Decided Jan. 14, 1884

States for the Northern District of Ohio. The history and facts of the case appear in the opinion of the court.

ERROR to the Circuit Court of the United

Messrs. Richard Waite and E. T. Waite, for plaintiff in error:

*Head note by Mr. Justice HARLAN.

and that manufactured article is fit for its purpose. NOTE.-Implied warranty against latent defects; See note to Bulkley v. Honold, 60 U. S., XV., 663.

Hamilton took the false work for what it was, just as it stood, and the rule of caveat emptor applies with full force.

Welsh v. Carter, 1 Wend., 190.

In the absence of representations or concealment amounting to fraud, or of an express contract covering defects, the buyer assumes the risks of the article failing to meet his expectations, or to fill any specific purpose.

1 Pars. Cont., 461; 2 Pars. Cont., 273; Laidlaw v. Organ, 2 Wheat., 178; Kintzing v. McElrath, 5 Pa., 467; Hadley v. Clinton Co. Imp. Co., 13 Ohio St., 502.

Mr. John C. Lee, for defendant in error.

Mr. Justice Harlan delivered the opinion of

the court:

The Kellogg Bridge Company, which brings this writ of error and was defendant below, undertook to construct, for the Lake Shore and Michigan Southern Railroad Company, an iron bridge across Maumee River at Toledo, Ohio. After doing a portion of the work it entered into a written contract with Hamilton, the defendant in error, for the completion of the bridge under its directions. That contract is the basis of this action and contains, among others, these stipulations :

"That the said party of the first part (Hamilton) hereby agrees to furnish and prepare all the necessary false work and erect the iron bridge now being constructed by the said party of the second part (The Kellogg Bridge Company), for the Lake Shore and Michigan Southern R. R. Co. at Toledo, Ohio, over the Maumee River, receiving said bridge material as it arrives on the cars at the site of said bridge and erecting the same in the best manner, according to the design of said bridge and the directions of said second party, from time to time, commencing the erection of said work when required to do so by said second party, and proceeding with the same with a force sufficient to complete the entire work on or before the first day of March next; the said first party also agrees to assume and pay for all work done and materials furnished up to the time of executing this contract, including piling and piles, timber and other materials and labor done on the same, but not including bolts and washers which have been furnished by the party of the second part, but to return said bolts and washers to the said second party, or pay for the same on completion of said bridge.

And the said first party in consideration of the payments hereinafter mentioned, to be made by said second party, agrees to perform all the stipulations of this agreement in a thorough and workmanlike manner and to the satisfaction of the second party.

And if at any time the said second party is not satisfied with the manner of performing the work herein described, or the rapidity with which it is being done, the second party shall have full power and liberty to put on such force as may be necessary to complete the work within

gineer of the Lake Shore and Michigan Southern Railroad Company.

The bridge which Hamilton undertook to erect consisted of three independent fixed spans, each to be one hundred and seventy-five feet six inches in length, suspended between, and resting at each end of the span upon, stone piers, which had been prepared to receive the same, and one draw span of one hundred and eightyfive feet in length, resting upon a pier in the center, also then prepared. In erecting the several spans it was necessary to build and use what the contract describes as "false work," which consisted of piles driven in the river between the piers upon which the spans were to rest, and upon which was placed a platform.

As indicated in the written contract, the Bridge Company had previously constructed a part of this false work between the first and second spans, the cost of which Hamilton paid, as by the contract he agreed to do. Assuming this work to be sufficient for the purposes for which it was designed, Hamilton proceeded to complete the erection of the bridge according to the plans furnished him.

There was evidence before the jury tending to establish the following facts:

A part of the false work or scaffolding put up by the Company sank under the weight of the first span, and was replaced by Hamilton. When the second fixed span was about two thirds completed, the ice, which before that had formed in the river, broke up in consequence of a flood, carrying away the false work under that span, and causing the whole of the iron material then in place on the span, or on the span ready to be put in place, to fall in the river, which at that place was about sixteen feet deep. If the piles driven by the Bridge Company had been driven more firmly into the bed of the river, they would have withstood the force of the ice and flood. In consequence of the insufficiency of the false work done by that Company, Hamilton was delayed in the completion of the bridge and subjected to increased expense.

In this action his claim is that the Company is liable, not only for the amount specified in the contract, but also for such damages as he sustained by reason of the insufficiency of the false work it constructed. Charging defendant with these amounts and crediting it with such sums as had been paid to or for Hamilton, a balance of $3,693.78 was claimed to be due the latter. Defendant, by way of counterclaim, asked judgment againt Hamilton for $6,619.70. There was a verdict and judgment in favor of plaintiff for $3,039.89.

It is insisted by the defendant in error that the value of the matter really in dispute here is

less than the amount requisite to give this court jurisdiction. Upon this ground a motion to dismiss was heretofore made, and was denied. To that ruling we adhere. Upon the pleadings it is apparent that the defendant asserts its right to judgment for $6,619.70 after crediting plaintiff, not only with the sum specified in the contract, but with every other sum to which he is entitled in the accounting. This is conclusive as to our jurisdiction upon this writ of error.

It was not claimed on the trial nor is it contended here, that the Company made any statement or representation as to the nature or character of the false work it did, and which, by the contract, Hamilton agreed to assume and pay for. But there was evidence tending to show that the insufficiency of that false work was unknown to Hamilton at the time the contract was made; was not apparent upon any examination he then, or could have, made; and was not discovered, indeed, could not have been discovered, until, during the progress of the erection of the bridge, the false work was practically tested.

The court, among other things, instructed the jury, at the request of plaintiff, and over the objections of the defendant, that by the contract -looking at all the circumstances attending its execution and giving to its terms a fair and reasonable interpretation-there was an implied warranty upon the part of the Company that the false work it did, and which plaintiff agreed to assume and pay for, was suitable and proper for the purposes for which the Bridge Company knew it was to be used. This instruction was accompanied by the observation that if the evidence showed "That the particular work which was said to be defective was such that the plaintiff could not by examination ascertain its defects; for if they were apparent by mere examination of the false work it was the duty of the plaintiff to make that good; he had the right to rely upon the implied warranty; that is, if the defects were such that they could not be, by ordinary observation and care on behalf of the plaintiff, ascertained and found out." That instruction presents the only question we deem necessary to determine. Although there are several assignments of error, they depend, as counsel for plaintiff in error properly concede, upon the inquiry whether the court erred in ruling that by the terms of the contract there was an implied warranty that the false work constructed by the Bridge Company was suitable and proper for the purposes for which it was to be used by Hamilton.

The argument in behalf of plaintiff in error proceeds upon the ground that there was a simple transfer by the Company of its ownership of the work and materials as they existed at the time of the contract; that Hamilton took the false work for what it was, and just as it stood; consequently, that the rule of caveat emptor applies with full force. The position of counsel for Hamilton is that, as in cases of sales of articles by those manufacturing or making them, there was an implied warranty by the Bridge Company that the work sold or transferred to Hamilton was reasonably fit for the purposes for which it was purchased.

speaking by Mr. Justice Davis, the court observed, that "No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies."

An examination of the ground upon which some of the cases have placed the general rule, as well as the reasons against its application, under particular circumstances, to sales of articles by those who have manufactured them, will aid us in determining how far the doctrines of those cases should control the one before us. The counsel for the Bridge Company relies upon Parkinson v. Lee, 2 East, 314, as illustrating the rule applicable in ordinary sales of merchandise. That case arose out of a sale of five pockets of hops, samples of which were taken from each pocket and exhibited at the time of sale. The question was whether, under the circumstances of that case, there being no express warranty and no fraud by the seller, there was an implied warranty that the commodity was merchantable. It was resolved in the negative, upon the ground that it was the fault of the buyer that he did not insist on a warranty; the commodity was one which might or might not have a latent defect, a fact well known in the trade; and since a sample was fairly taken from the bulk and the buyer must have known, as a dealer in the commodity that it was subject to the latent defect afterwards appearing, he was held to have exercised his own judgment and bought at his own risk. But of that case, it was observed by Chief Justice Tindal, in Shepherd v. Pybus, 3 Man. & G., 868, that two of the Judges participating in its decision "Laid great stress upon the fact that the seller was not the grower of the hops, and that the purchaser, by the inspection of the hops, had as full an opportunity of judgment of the quality of the hops as the seller himself." There was, consequently, nothing in the circumstances to justify the buyer in relying on the judgment of the seller as to the quality of the commodity. It is, also, worthy of remark, that in Randall v. Newson, L. R., 2 Q. B. Div., 102, it was said of Parkinson v. Lee, that "Either it does not determine the extent of the seller's liability on the contract, or it has been overruled."