Nix v. Hedden
THIS was an action, brought February 4, 1887, against the collector of the port of New York, to recover back duties, paid under protest, on tomatoes imported by the plaintiff from the West Indies in the spring of 1886, which the collector assessed under "Schedule G. -- Provisions," of the Tariff Act of March 3, 1883, c. 121, imposing a duty on "Vegetables, in their natural state, or in salt or brine, not specially enumerated or provided for in this act, ten per centum ad valorem"; and which the plaintiff contended came within the clause in the free list of the same act, "Fruits, green, ripe or dried, not specially enumerated or provided for in this act." 22 Stat. 504, 519.
At the trial, the plaintiff's counsel, after reading in evidence definitions of the words "fruit" and "vegetables" from Webster's Dictionary, Worcester's Dictionary and the Imperial Dictionary, called two witnesses, who had been for thirty years in the business of selling fruit and vegetables, and asked them, after hearing these definitions, to say whether these words had "any special meaning in trade or commerce, different [***2] from those read."
One of the witnesses answered as follows: "Well, it does not classify all things there, but they are correct as far as they go. It does not take all kinds of truit or vegetables; it takes a portion of them. I think the words 'fruit' and 'vegetable' have the same meaning in trade to-day that they had on March 1, 1883. I understand that the term 'fruit' is applied in trade only to such plants or parts of plants as contain the seeds. There are more vegetables than those in the enumeration given in Webster's Dictionary under the term 'vegetable,' as 'cabbage, cauliflower, turnips, potatoes, peas, beans, and the like,' probably covered by the words 'and the like.'"
The other witness testified: "I don't think the term 'fruit' or the term 'vegetables' had, in March, 1883, and prior thereto, any special meaning in trade and commerce in this country, different from that which I have read here from the dictionaties."
The plaintiff's counsel then read in evidence from the same dictionaries the definitions of the word "tomato."
The defendant's counsel then read in evidence from Webster's Dictionary the definitions of the words "pea," "egg plant," "cucumber," "squash" and "pepper."
The plaintiff then read in evidence from Webster's and Worcester's dictionaries the definitions of "potato," "turnip," "parsnip," "cauliflower," "cabbage," "carrot" and "bean."
No other evidence was offered by either party. The court, upon the defendant's motion, directed a verdict for him, which was returned, and judgment rendered thereon. The plaintiffs duly excepted to the instruction, and sued out this writ of error.