Certainly, the testimony of Mr. Hooper, in concurrence with the Commercial Dictionaries, must tend to show that the report is mistaken, when it so confidently asserts, that, “in the course of commerce, the two tins are never confounded by dealers.” On the contrary, they have been treated by “dealers,” and by authoritative writers on commerce, as substantially the same. It is almost superfluous for me to add, that, according to the ruling of our courts, such testimony would be decisive. Thus, where certain words were used in the tariff, Mr. Justice Story decided, that, “the tariff being a statute regulating commerce, the terms of it must be construed according to commercial usage and understanding.”[184] Common sense is in harmony with this judgment.
As if to put this commercial usage beyond question, we have the testimony of Mr. Richards, a witness for the prosecution, as follows.
“Cross-Question 18. Do you ever have orders from customers for Banca tin, that you execute by the delivery of Revely or Straits?—Ans. We have.”
“Cross-Question 22. Suppose you had an order from a foundry—say Hooper & Co.—for five thousand pounds of Banca tin, which you knew was to be used for castings, how would you fill such an order?—Ans. We should not hesitate to give him Revely.”
“Re-Cross-Question 1. Would you not deliver to a party five thousand pounds of Revely tin, upon a contract for Banca tin, if you had never known them to buy such a quantity of any kind but Revely or Straits, if you had repeatedly sold them Revely or Straits acceptably, and you considered the tin was to be used for castings?—Ans. I should.”
3. The usage at the Navy Yard was in harmony with commercial usage, as the testimony abundantly shows. For at least seven years previous to the contract of the respondents, the tin known as Revely had been received at the yard as Banca. Edward Cody, witness for the prosecution, and the master founder, on cross-examination, puts this beyond question.
“Cross-Question 4. During these seven years [past], has not the Revely tin been the standard article in use in your bureau or foundry?—Ans. It has.”
“Cross-Question 11. If you had been inquired of by them [Smith Brothers & Co.] what kind of tin you required, what would have been your reply?—Ans. I should have had the same as I have had.
“Cross-Question 12. What is that?—Ans. Revely.”