from taking the market value or any other standard of value. The majority of the court say that the decisions of the courts construing the statute, and the administrative practice pursuant thereto, forbids his taking any value but the cost to the assembler. It is not urged that there was any reason for the court arbitrarily adopting the cost of production as the "value" in the cases cited, and it is not disputed but what its application to the facts at hand show its absurdity.

The decisions of the courts on "value" as used in this section of the statute, have gone only so far as to sanction the "production cost" standard of value where producing cost was used in comparing all competing articles. New conditions bring new rules of law where the statute is silent as in the present instance, and this court should never hold that the value of one competing article is its selling price, and of the other its cost of production. If the cost of production is to be accepted as the rule for the glass bottle, it was surely the duty of the importer to show the production cost of the iron container if he hoped to overcome the findings of the appraiser and collector. This he did not do, and I have no good reason yet assigned why the appraiser's finding should be wafted arbitrarily aside without proof of its incorrectness. It was the duty of the appraiser to ascertain the component material of chief value of the merchandise and report the same to the collector. This he did in the fairest way possible, and it should stand.

The Board of General Appraisers in my judgment by their unanimous decision were correct in sustaining the appraiser and collector, and their decision should be affirmed.

EIDLITZ & SON (INC.), AS AGENT v. UNITED STATES (No. 2254).1

1. CONSTRUCTION PARAGRAPH 573, TARIFF ACT OF 1913.

Paragraph 573, tariff act of 1913, accords free entry to "Philosophical and scientific apparatus," etc. imported "for the use and by order of" certain described societies or institutions. The paragraph means that the importation must be made both for the use of and by order of the society or institution, Both the history of the paragraph and the results which would follow negative the idea that the intention of Congress would be effectuated by construing "and" to mean "or."

2. EVIDENCE, ADMISSIBILITY.

An affidavit filed with the collector in compliance with Treasury regulations prescribing the method of claiming free entry under paragraph 473, tariff act of 1913, is not admissible in evidence before the Board of United States General Appraisers in the trial of a protest against the collector's disallowance of such claim.-Borgfeldt & Co. v. United States (11 Ct. Cust. Appls. 421; T. D. 39433).

1 T. D. 39998.

3. AGENCY, Proof of.

The naming of appellant as agent for Yale University in a contract between himself and a third party amounts to no more than a declaration of agency made by the alleged agent in the absence of the alleged principal, and does not establish the existence of the agency. The law is well settled that proof of agency is prerequisite to making the declaration of an agent competent evidence against the principal. And where such contract is offered in evidence to establish the agency as against a fourth party, a total stranger to the whole transaction, no weight can be given to it even though admitted without objection.

4. EVIDENCE, RELEVANCY.

A showing that certain imported bells were to be inscribed "For God, For Country and For Yale" tends to prove that they were for the use of Yale University but not that they were ordered by it, either directly or indirectly. 5. EVIDENCE-PRESUMPTION FAVORS COLLECTOR-CHIMES FOR YALE UNI

VERSITY.

Chimes, composed of bells and the necessary mechanism to play certain musical pieces by means of a keyboard, were imported to be installed as part of a building erected as a gift to Yale University. Without deciding that they are or are not the philosophical and scientific apparatus or instruments given free entry by paragraph 573, tariff act of 1913, when imported for the use of and by order of certain kinds of institutions, the failure to show that they were imported by order of the university makes it necessary to affirm the decision of the Board of United States General Appraisers overruling a protest claiming such free entry as against the collector's assessment as musical instruments under paragraph 373.

United States Court of Customs Appeals, January 24, 1924.

APPEAL from Board of United States General Appraisers, G. A. 8603 (T. D. 39448).

[Affirmed.]

Cornelius J. Sullivan for appellant.

William W. Hoppin, Assistant Attorney General (Charles D. Lawrence and Edward J. Neary, special attorneys, of counsel), for the United States.

[Oral argument October 2, 1923, by Mr. Sullivan and Mr. Lawrence.]

Before MARTIN, Presiding Judge, and SMITH, BARBER, BLAND, and HATFIeld, Associate Judges.

HATFIELD, Judge, delivered the opinion of the court:

The importation the subject of this appeal consisted of chimes composed of ten bells and the necessary operating mechanism. The bells were arranged so that the chimes could be played by hand by means of a keyboard. They did not strike the hour, but were designed for the purpose of playing certain old music. They were installed in the tower of a building known as Harkness Memorial Quadrangle at Yale University. The chimes and the building in which they were installed were a gift to the university by the Harkness family.

The chimes were imported in April, 1922, and were assessed for duty by the collector as musical instruments, under paragraph 373 of the tariff act of 1913.

It is the claim of the importer that the importation was entitled to free entry under the provisions of paragraph 573 of the tariff act of 1913, which reads as follows:

Philosophical and scientific apparatus, utensils, instruments, and preparations, including bottles and boxes containing the same, specially imported in good faith for the use and by order of any society or institution incorporated or established solely for religious, philosophical, educational, scientific, or literary purposes, or for the encouragement of the fine arts, or for the use and by order of any college, academy, school, or seminary of learning in the United States, or any State or public library, and not for sale, and articles solely for experimental purposes, when imported by any society or institution of the character herein described, subject to such regulations as the Secretary of the Treasury shall prescribe.

It is conceded that Yale University is such an institution as is mentioned in paragraph 573.

The burden of proof rested upon the importer at the trial before the Board of General Appraisers to prove by proper evidence its claim that the importation was entitled to free entry under paragraph 573 of the tariff act of 1913.

The Board of General Appraisers overruled the protest, and the importer appealed.

It is contended by the importer that the chimes in question were imported by order of and for the use of Yale University, and that this claim is substantiated by the introduction in evidence of the contract between the importer and John Taylor & Co. (Exhibit 1), together with the testimony of the associate treasurer, comptroller, and acting secretary of Yale University to the effect that he filed the affidavit of free entry on behalf of the university and a specification attached to Exhibit 1 providing for an inscription on the bells, "For God, For Country, and For Yale."

It is argued that this evidence proves that the importer, Marc Eidlitz & Son (Inc.), was acting as agent for Yale University in the transaction, and that therefore the order given by Marc Eidlitz & Son (Inc.) was in fact the order of Yale University. So far as the evidence of the inscription is concerned, it seems to us that it tended to prove only that the chimes were for the use of Yale University, and we think it did not tend to prove that the chimes were ordered by the university, either directly or through an agent.

The affidavit of free entry above referred to and mentioned by counsel for the importer in his brief as having been filed by the associate treasurer of Yale University, on behalf of the university, was but a preliminary affidavit required by the customs regulations to aid the collector in determining whether the importation was entitled

to free entry, and although a part of the record is not competent evidence of the statements contained in the affidavit upon the trial before the Board of General Appraisers to substantiate the claims made by the importer in his protests.-Borgfeldt & Co. v. United States (11 Ct. Cust. Appls. 421; T. D. 39433), and cases therein cited. However, in case of express stipulation by the parties to submit a case to the Board of General Appraisers "on the record," the statements contained in a preliminary affidavit filed with the collector and forwarded by him to the Board of General Appraisers as a part of the record may be taken into account by the board in its consideration of the case.-United States v. Borgfeldt & Co. (11 Ct. Cust. Appls. 129; T. D. 38934).

There was, however, no such stipulation in this case. On the contrary, counsel for the Government objected to the consideration of the affidavit under discussion as evidence in the case, and while the record shows that the board overrruled the objection, the effect of the same is to negative the suggestion of any stipulation to submit "on the record."

The statement of the witness Farnam to the effect that he filed on behalf of Yale University the declaration of free entry on the date of April 28, 1922, tends to prove that the officers of the university were interested in the chimes, but does not, we think, prove the agency asserted by the importer.

We come now to the question of how much weight and importance is to be attached to the declaration of agency set forth in the contract between the importer and John Taylor & Co., appearing in the record as Exhibit 1. On the front page of said exhibit and under paragraph 1 appears the following language:

The Sub-Contractor shall and will well and sufficiently perform and finish in a thoroughly workman-like manner under the direction and to the satisfaction of the General Contractors and JAS. GAMBLE ROGERS, Architect, (acting as agent of the owner, YALE UNIVERSITY

* * *

It is argued by the importer that this is sufficient to establish the agency claimed by it. It will be noted that Jas. Gamble Rogers is included in the declaration, as if it was intended thereby to assert that the general contractors and Rogers were the joint agents of Yale University, although Rogers is not a party to the contract and does not presume to act as the joint agent with the general contractors. It might well be argued that a proper construction of the declaration would lead to the conclusion that Rogers alone was the agent for the purposes mentioned therein. We are unable to reach the conclusion desired by the importer. We think that the language above quoted amounts to no more than an admission or declaration of agency by the alleged agent, made in the absence of the alleged principal, and the fact that the declaration is contained in the written

contract of purchase or order does not give the statement any more weight than if it had been made orally. It remains but a declaration or an admission of agency.

The law is well established that proof of agency is essential in order to make the declarations of an alleged agent competent evidence. as against the principal.-Union Guaranty & Trust Co. v. Robinson (79 Fed. 420); Chicago, R. I. & P. Railway Co. v. Chickasha National Bank (174 Fed. 923) and cases therein cited; First Unitarian Society v. Faulkner et al. (91 U. S. 415-417).

In this case, however, the declaration is offered in evidence to establish the agency, not as against the principal, for the principal is not even a party to this case, but is offered against a party who was a total stranger to the transaction; and when such a declaration or admission, which is no more than a self-serving declaration, is admitted in evidence, as in this case, against a total stranger to the transaction involving the contract of agency as well as a stranger to the contract for the purchase of the chimes, and is unsupported by independent proof of the agency, no weight can be given to the declaration, even though admitted without objection.

There is no other evidence in the case in any way tending to prove the alleged agency, although at least one officer and a professor of the university appeared at the trial before the Board of General Appraisers and gave testimony upon other phases of the case.

It was incumbent upon the importer to prove at the trial, by competent evidence, that it was the agent of Yale University in the transaction under discussion and that it acted as such agent in conformity with the authority conferred upon it by the university. This, we think, the importer wholly failed to do.

But it is argued by the importer that a proper interpretation of paragraph 573 of the tariff act of 1913 requires the substitution of the word "or" in the language "for the use and by order of" in the place of "and," and that accordingly it is unnecessary to prove that the chimes were ordered by Yale University, either directly or through an agent.

There is authority for the suggestion that the conjunctions "and" and "or" are convertible, or may be substituted one for the other, and such substitution is not infrequently resorted to when, in the interpretation of a statute, the evident intention of Congress requires it. United States v. Gavin & Co. (7 Ct. Cust. Appls. 292: T. D. 36804). But the conjunction "or" can not be substituted for the conjunction "and" where to do so would defeat the evident intention of Congress and lead to an absurd result.

To substitute the word "or" for "and" in paragraph 573 of the tariff act of 1913 would, we think, utterly destroy the plain meaning