# United States v. Borgfeldt > Court of Customs and Patent Appeals · March 15, 1926 · 13 Ct. Cust. 620 URL: https://www.frixlaw.com/law-library/cases/6828598 ## Case - **Full name:** United States v. Borgfeldt & Co. - **Court:** Court of Customs and Patent Appeals - **Decided:** March 15, 1926 - **Citations:** 13 Ct. Cust. 620; 1926 CCPA LEXIS 56 - **Precedential status:** Published - **Opinion:** Dissent by Bland - **Judges:** Babble, Barbee, Bland, Graham, Hatfield, Smith - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6828598 ## Opinion text DISSENTING OPINION Bland, Judge: While I concede that there is respectable authority supporting the opinion of the court, in this case, I can not agree to the conclusion reached. It will be remembered that the collector, in this case, assessed the music boxes in controversy for duty, under paragraph 1414 of the Tariff Act of 1922, as toys, and found that they were designed for the amusement of children. Such assessment implies that he found them to contain the characteristics mentioned in the definition of toys in the Illfelder case, supra, which is as follows: In common speech, and as popularly understood, a toy is essentially a plaything, something which is intended and designed for the amusement of children only, and which by its very nature and character is reasonably fitted for no other purpose. Although an article may be chiefly used for the amusement of children, if its nature and character are such that it is also reasonably fitted for the amusement of adults, or if it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classed as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally. It is conceded that there is no evidence in the record to overcome the presumption of the correctness of the collector’s finding, except the sample itself. The only testimony in the record is that of one witness for the importer, who identified the samples and testified that the music boxes played a number of airs, and that they were sold “To the musical trade; to the musical department of the toy department.” An examination of the samples supports the finding of the collector rather than the contention of the importer, and this is especially true with reference to three of the samples. Two of them are about'4 by 3 inches square on top and something like 2 inches high. They *625 have colored pictures of children on them, and, while the steel comb arrangement in the boxes makes a pleasing sound, I have not been able to detect any semblance of a tune. One of them is decorated with pictures of children and contains the full alphabet in large letters around the outside of the box. Clearly they are for the amusement of children only, and are reasonably fitted and designed for no other purpose. I do not believe a thing can be a toy and a musical instrument at the same time within the meaning of the tariff statute. If it is a toy, it does not rise to the dignity of a musical instrument. This view especially should be adopted since the court makes the test of a musical instrument the quality of its music, its capacity or ability to produce music as that word is commonly understood. The court has fallen into error by holding, first, that the music boxes are not toys within the definition of the Illfelder case, since there is no evidence disputing the finding of the collector, and since the samples support his finding; second, in holding from an examination of these samples and listening to their tuneless notes that they have the quality of musical instruments as the word “music” is commonly understood. No doubt the court was influenced by , the language quoted in United States v. Bernard, Judae & Co. et al, 13 Ct. Cust. Appls. 306 , T. D. 41230, which was quoted from T. D. 22765, 4 Treas. Dec. 118 : If an article is capable of being played upon as a musical instrument by a person who has learned to play such an instrument, whether that person be a child or an adult, it can not be said to be chiefly designed and suitable for use as a plaything for children, and is not a toy. In that case violins and accordions were under consideration. It requires skill and musical ability to play them and they must have the requisite number of notes and other characteristics to enable the player to exercise his skill. In the music boxes at hand, can it be said that anyone must “learn” to play them? Playing upon one of these toys requires no musical ability whatever, and I submit that the reasons prompting the statement of Judge Fischer and approved by this court are in no sense applicable here. While I concede that the opinion of the court is not without authority to support it, it is a case of drifting into a situation approaching the ridiculous. We are holding a child’s music box, which is nothing more than a toy, a plaything, to be a musical instrument. This, in my judgment, does an injustice to the art as well as the common understanding of what constitutes music and muscial instruments. The judgment of the board should have been reversed and the collector should have been sustained. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6828598. Public record. Not legal advice.