Opinion of the Court.

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.

Congress has said that the valuation of the customs officers shall be final, but there is still 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. This 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

Opinion of the Court.

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 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 42 francs, and the general appraiser at 52 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 made by the merchant and general appraisers, and that his appraisement at 49 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 49 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, 16 Howard, ubi supra. The informal character of his amended report could not affect the power of the collector to act in the premises.

The plaintiffs in error contended 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 Land & Improvement Company, 18 How. 272, and Springer v. United States, 102 U. S. 686, are conclusive on this point against the plaintiff in error.

We find no error in the record. The judgment of the Circuit Court must, therefore be

Affirmed.

Statement of Facts.

KELLOGG BRIDGE COMPANY v. HAMILTON.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF OHIO.

Submitted October 31st, 1883.-Decided January 14th, 1884.

Contract-Implied Warranty.

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 sufficient for the purposes for which it was designed, the subcontractor proceeded with his undertaking, 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 insuffiicency, however, was not apparent upon inspection, and could not have been discovered by the subcontractor until actually tested during the erection of the bridge: Held, That the law implied a warranty that the work sold or transferred to the subcontractor was reasonably sufficient for the purposes for which the company knew it was designed.

The Kellogg Bridge Company, the 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 the defendant in error, for the completion of the bridge under its directions, containing 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 Railroad Company 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 proceed

Statement of Facts.

ing 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 the time named, and provide such tools or materials for false work as may be necessary, and charge the cost of the same to the said first party, who agrees to pay therefor."

In consideration of the faithful performance of these stipulations, Hamilton was to receive from the Bridge Company $900 on the completion of the first span, a like sum on the completion of the second span, $800 on the completion of the third span, and $1,403 on the completion of the draw and the entire work-such payments to be made only on the acceptance of each part of the work by the chief engineer 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 eighty-five feet in length, resting upon a pier in the centre, also then prepared. In erecting the several spans it was necessary to build and use what the contract described as 'false work,' which consisted of piles driven in the river be

Statement of Facts.

tween 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 twothirds 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.

The bridge being completed, Hamilton brought suit in the State court to recover the contract price of the bridge, extra work claimed to have been done on it, and damages sustained by reason of the insufficiency of the false work constructed by the Bridge Company: in all $3,693.78. The cause was removed to the Circuit Court of the United States, where the Bridge Company answered, setting up a counterclaim for $6,619.70. Trial was had with verdict and judgment for plaintiff for $3,039.89. The defendant below brought a writ of error to reverse that judgment.

Mr. Richard Waite, and Mr. E. T. Waite for plaintiff in

error.