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the opportunity, which we lack, to observe the demeanor of Mr. Wada and of other witnesses. His evaluation of the oral testimony he heard
. rests in part on considerations not fully reviewable from the cold record. He stated that he was required “to conclude that the testimony of Jiro Wada is inclusive and unconvincing in the matter of the sweater offerings." The testimony of plaintiff's rebuttal witnesses was not more enlightening. This made it unnecessary, he held, to evaluate the testimony of defendant's three witnesses, taken before the late Judge Johnson in Los Angeles.
It is clearly established that, between 1956 and 1958, Mr. Wada and other agents of his company offered to some persons other than Minkap, sweaters such as or similar to the ones at bar, or some of them, both in Tokyo and in New York, for export to the United States. What is not established is whether the offers were uniform, or to whom, and at what prices and terms they were made. There is a total lack of documentary evidence such as we would naturally look for. Mr. Wada used pricelists for other merchandise-examples are in the recordand if he did not use them for the offers here alleged, the most obvious explanation is that he was attempting to make contracts by negotiation only. If he did use them, the failure to produce them is not explained. The "business records,” so-called, collective exhibits 25 and 26, are fully described above. If, as the evidence showed, at the second trial, the names and numbers, Alma, etc., 101, etc., were not used in offers other than to Minkap, neither could exhibits 25 and 26 have been so used, either as originals or in reproduction. The two exhibits are business records relating to transactions with Minkap, not anyone else. Yet the unhappy Mr. Wada is made to say about these exhibits in the first trial record (IR 79):
Quoting my business records, we offered Alma, 25 per cent silk, 75 per cent lamb's wool, our price was $37.53 f.o.b. in a course of questioning that related to offers to his “various customers” (IR 76–77, the phrase appears twice). What he meant we shall never know, but the then trial court must have understood him as stating that exhibits 25 and 26 showed that he freely offered Alma to parties other than Minkap at the figure indicated, and so through Barbara, Clarice, and the others. If Mr. Wada or his company's agents were freely offering such sweaters, they surely must have put something on paper in their own files and in the hands of potential buyers to show what they were offering. It is hardly credible that, if it existed, no such paper has survived and been made available for the court's inspection.
Businessmen, members of organizations, do not go about the world scattering offers broadcast, without making any record of what they are doing. In the absence of such documentary corroboration, the oral evidence would have to be clear and convincing, which is far from being the case here. The trial court in the present case believed, and we think wholly reasonably, that alleged undocumented and oral offers needed to be brought into focus, showing the court who was talking to whom, where and when, what was said, and above all, exactly what was offered. Here we are left in confusion whether Mr. Wada or someone else made the offers, whether in Tokyo or the United States, when, to whom, and how the offerors conveyed to the offerees a description of what they were offering. Mr. Albert says he received offers by mail at his New York office, but the letters are not offered and no explanation of their absence is forthcoming; this leaves his testimony more upsetting than helpful. Mr. Wada claimed he made his offers in the course of personal visits, making no reference to any offers by mail, and his offers to Albert were in the course of transactions with Albert's agent in Japan. He said:
When I made an offer it was usually our offer, or some descriptive material. This would seem to mean the so-called offers in some instances may have been mere furnishing of descriptive material. In the case of China Consolidated Corp. and Minnesota Knitting Mills, he could not remember which styles he offered. Later he said offers were oral in some cases, written in others, and he could not specify which offers were which. When he visited customers, he showed them his samples and they showed him their samples.
We exchanged designs. Well, in general, I was trying to open up a market for my products. It seems more probable that his visits and those of his company's agents were exploratory to get negotiations started, rather than to make offers which could be accepted or rejected. It is reasonable to suppose he expected other United States customers to do as Minkap had done, supplying drawings and specifications on which he was to furnish quotations, delivery dates, etc. Samples of the Minkap designs, if he displayed them, were to show what he could do. He was not selling merchandise already in stock or in production, nor remnants, but sought orders to keep his plant in production at full capacity. At any rate, what we have, to prove the alleged free offers herein, consists of (a) a complete absence of relevant documents, exhibits 25 and 26 not being records bearing on the transactions involved, and some other writings that would have been relevant, mentioned in the testimony but not produced, and (b) oral conversations between unspecified persons, at unspecified times and places, at which unspecified things were said. In this view, it makes little difference whether the alleged offers were made at times from 1956 to 1958, or within any shorter span of
time. If offers were made, plaintiff ought to be able to tell us what terms of payment were proposed, and what delivery schedules. Offers would be incomplete without these items, especially offers from Japan.
The period of exportation involved herein is from June through December 1957 and, at the original trial, Mr. Wada stated positively that sweaters in these styles and yarn compositions were being freely offered during that time. At the second hearing, he was unwilling to relate the offers to that period precisely but said the offerings were made at some time between the middle of 1956 and the middle of 1958. He explained:
* After I read this record over this time, that is, 3 years after I had made these statements, I began to realize that many of the questions were predicated on many different elements. For instance, questions which deal with time, the place, the circumstances under vhich a certain thing is being questioned as to whether it is true or not; and at that time, three years ago, my English was even poorer than it is now. I merely understood the question part, that is, I did not understand that it had to be a question was confined to a certain period of time. I didn't realize that. I thought I was just being asked a question, and I answered them. I remember that the interpreter who was assigned to me at that time was an old Japanese man, a native of Japan, who did not speak English too well, and whose Japanese was not too well. So I don't think the mistakes that I made in here were exclusively the question of pronunciation, but in many cases I don't think that I understood the question too well. But I did my best to answer those questions.
As to “time of exportation,” it has been held that the period is not limited to the hour or day of exportation but, depending on the circumstances of the case, may include a period before or after the dates
a of exportation of the imported merchandise. United States v. New York Merchandise Co., Inc., 31 CCPA 213, C.A.D. 274; United States v. Fisher Scientific Co., 44 CCPA 122, C.A.D. 648; Atlas Trading Co. v. United States, 26 Cust. Ct. 652, Reap. Dec. 7989.
In United States v. New York Merchandise Co., Inc., supra, which involved United States value, the court said (p. 218):
Second, the phrase "at the time of exportation" does not nec. essarily mean the hour or the day of exportation, but a time near enough to the date of exportation and under such circumstances as will reflect the price of the goods on the date of exportation. It is obvious that no definite period prior or subsequent to the exportation can be fixed as a standard for all cases. A fluctuating market, which might be brought about by many reasons, might make a date of sale or offer in this country prior or subsequent to the date of exportation an improper one to accept in determining the question here involved. On the other hand, the proof might show a steady, unvarying market or other conditions which would make a date months removed from the date of exportation a proper one to reflect what the price was on the date of exportation.
In Atlas Trading Co. v. United States, supra, which involved export value, the court stated (p. 660):
The trial judge apparently held that since plaintiff's exhibit 1 related to prices on and prior to January 16, 1947, the date when the goods were shipped from Tientsin, and not the date of exportation of the rugs, February 16, 1940, plaintiff had therefore failed to prove export value. Plaintiff has cited United States v. New York Merchandise Co., Inc., 31 CCPA (Customs) 213, C.A.D. 274; United States v. Reiner, 35 CCPA (Customs) 50, C.A.D. 370, which hold that it is not necessary that a freely offered price be shown on the exact date of exportation of the goods. There is nothing in the record to indicate a fluctuating price or unstable price conditions; but, on the contrary, the stability of the price established by plaintiff's exhibit 1 is confirmed by the testimony of the witness Silverman (Tr. 57–59) and also by defendant's collective exhibit 3, dated April 5, 1940, which refers to hooked rugs, and the invoice unit prices or values of 26 and 14 cents mentioned therein coincide with unit prices in the instant case; and we may infer that the freely offered prices of January 16, 1940, had not changed up to April 5, 1940, and therefore were the same on February 16, 1940.
In the instant case, the period mentioned by Mr. Wada might be considered sufficiently close to the dates of exportation provided it were shown that there was a stable market and that prices did not vary. Plaintiff attempted to show this latter and was hampered by the exclusion of questions.
The record as it is, is not clear. There is doubt that any market for these blends and styles existed for any considerable period of time. Mr. Gonick, who requested the samples and offers in the first place, testified at the original hearing:
A. The listing of the styles that you just enumerated are made in a composition of 25 per cent silk and 75 per cent lamb's wool. At the time when offers were requested of the Marusan Company for this group, not only were the 25 per cent silk and 75 per cent lamb's wool requested, but the 20 per cent Angora and the 80 per cent lamb's woolat that period the inclination and the demand of the market was limited in terms of the Angora, and at that period where they were changing the demand of requirements, consequently from that period on, if my memory serves me correctly, we no longer purchased any more the 25 per cent silk and 75 per cent lamb's wool, but our business was conducted in 20 per cent Angora and 80 per cent lamb's wool, and we no longer purchased, and it was foolish to continue to take these or to purchase in a yarn blend that was not desirable and not marketable.
Mr. Lowe stated that the styles here involved were novelties and would not sell for more than one season.
The revision of Mr. Wada's testimony, as to when he made his alleged offers, brings into play this testimony as to the short selling life such or similar merchandise might be expected to have. On the whole, we believe the plaintiff is not prejudiced or aggrieved by not being allowed to show that offered prices remained stable over a longer period than June-December 1957. Supposing this were true, however, the confusion and uncertainty respecting aspects of the alleged offers other than time would be fatal to the appeal herein. In our view of the case, it makes no difference whether Mr. Wada made his alleged offers at the alleged prices between June and December, inclusive, 1957, or between 1956 and 1958, both inclusive.