
    United States v. Sears, Roebuck & Co.
    (No. 1662).
    
    1. Musical Instrument.
    It is no part of the definition of a musical instrument that it can be used to produce a continuous melody and that a chromatic scale can be played upon it.
    2. Triangles are Musical Instruments.
    A metal triangle, with a wooden-handled hammer or striker, is dutiable as a musical instrument under paragraph 373, tariff act of 1913, and not as composed wholly or in chief value of iron, steel, or other metal under paragraph 167.
    United States Court of Customs Appeals,
    May 1, 1916.
    Appeal from Board of United States General Appraisers, Abstract 38904.
    [Reversed.]
    
      Bert Hanson, Assistant Attorney General (Frank P. Wilson, special attorney, of counsel), for the United States.
    Submitted on record by appellee.
    [Oral argument Apr. 11,1916, by Mr. Hanson.)
    Before Montgomery, Smith, Barber, De Vries, and Martin, Judges.
   MoNtgomert, Presiding Judge,

delivered the opinion of the court:

The appraiser in his answer to the protest in this case described the merchandise as metal triangles, used in orchestras, catalogued and sold as musical instruments, and commercially known as musical instruments. The exhibit consists of two parts, a metal triangle and a metal hammer, or striker, having a wooden handle. The protestant claimed the articles to be dutiable as articles or works composed wholly or in chief value of iron, steel, or other metal under paragraph 167, of the tariff act of 1913. The sole question in the case is whether the article imported is a musical instrument under paragraph 373. The Board of General Appraisers sustained the protest, and the Government appeals.

There was no proof offered of commercial designation. One witness only was called by the importer. The material part of his testimony was as follows:

Q. Will you define a musical instrument? — A. A musical instrument ought to be an instrument upon which a chromatic scale can be played.
Q. Is this such an instrument? — A. No.
Q. (By Mr. Lawrence.) Under your definition, I presume a drum is not a musical instrument? — A. It should not be.
Q. Is it? — A. It is not.
Q. In your opinion, it is not? — A. In my opinion, it is not.
Q. In your opinion, there are many things, I presume, used in orchestras in the execution of certain musical compositions which are not musical instruments?— A. Correct.
Q. Name some of them? — A. Drums, bells, castanets, triangles, duck calls, bird whistles, sand blocks, imitation for trains, gongs, and things of that kind.
Q. Cymbal? — A. Cymbal.
Q. Mostly carried by dealers in musical instruments, I presume? — A. Yes.
Q. Take this article here, this triangle; that produces one particular note, does it not? — A. Produces one sound.
⅜ ******
Q. Is it not true that this instrument is used in the execution of certain pieces of music as an essential part of the orchestra? — A. Yes.
Q. That is practically the only place.they are used, in the orchestra? — A. Orchestra or band, a very large band would have a large-sized triangle.

It is apparent that this witness was attempting to give, not a commercial designation of a musical instrument but his own idea of what the term in ordinary parlance signifies. Or it would be perhaps more accurate to state that he was trying to establish a test of his own, which is unfortunately at variance with the definitions given by lexicographers and with the ordinary understanding of the term. It would, we apprehend, be news to most people to be told that a drum is not a musical instrument. Certainly the board and the courts have 'repeatedly assumed that drums are musical instruments. In numerous cases the question has been raised as to whether drumheads are parts of musical instruments, and in a number of these cases the question has been answered in the affirmative. See cases collected in United States v. Lyon & Healy (4 Ct. Cust. Appls., 84; T. D. 33366). In none of these cases does it appear that any contention was made that a drum is not a musical instrument, although such a contention, if sound, would have called for a different conclusion than that reached by the board or the court in the case considered.

In Chambers’ Encyclopedia, published in 1875, under the title of music, it is said:

Musical instruments are classified as string instruments, wind instruments, and instruments of percussion. ⅜ ⅜ * Instruments of percussion are such as the drum, kettledrum, cymbals, etc.

And, so far as we have been able to discover, this classification of musical instruments has persisted in the encyclopedias and dictionaries to this date.

The New International Encyclopedia thus defines musical instruments:

Musical instruments are generally divided into four large groups, according to the manner in which the sound is produced, viz: (1) Stringed instruments, (2) wind instruments, (3) instruments of percussion, (d) keyed instruments. * * *
The instruments of percussion may be divided into two principal classes: (A) Those which have definite pitch; (B) those which have not. The former class comprises (1) the kettledrums, (2) the glockenspiel, (3) the zylophone. The latter class includes (1) the bass drum, (2) the small drums, (3) the tambourine, (4) the tamtam, (5) the cymbals, (6) the triangle, (7) the castanets.

In the Oxford Dictionary, under the title “instrument,” subdivision 3 is given the definition:

A contrivance for producing musical sounds by the vibration of some solid material (as strings, reeds, rods, membranes, etc.) or of a body of air in the pipe or tube. Musical instruments are commonly classified as wind instruments, stringed instruments, and instruments of percussion.

In Webster’s International Dictionary, under the title “instruments,” subdivision 3, it is said:

A contrivance by which musical sounds are produced. Musical instruments may be classified, according to the nature of the vibrating body that initiates the sound, as stringed, wind, and those sounded by a vibratory surface. * * * Instruments sounded by a vibratory surface may be subdivided according as the tone-producing surface is a membrane, as in drums; a plate, as a cymbal or bell; or a rod or blade, as a triangle or organ reed. '

And under the heading “ triangle”:

2. Music. An instrument of percussion. * ⅜ ⅜

The Century Dictionary and Encyclopedia defines triangle:

A musical instrument of percussion made of a rod of polished steel bent into the form of a triangle, and open at one of its angles. It is sounded by being struck with a small steel rod. It is frequently used in modern orchestral music for brilliant and sparkling effects.

In the Encyclopaedia Britannica (11th ed., Vol. XXVII, p. 258) appears the following:

Triangle, in music, an instrument of percussion of indefinite musical pitch, consisting of a triangular rod of steel, open and slightly curved at one corner. The triangle, suspended by a loop, is played by means of a steel stick with a wooden handle. Varied rythmical effects and different grades of forte and piano can be obtained. A sort of tremolo or roll can be produced by striking each end of the triangle alternately in rapid succession. When the triangle is scored for on a separate staff, the treble clef is used, but it is more often included with the bass drum on the bass stave. The tone of the triangle is clear and ringing, but it should have no definite pitch. The small triangles are the best. Beethoven, Mozart, Weber, and other great masters employed the instrument. ■

The test applied by the board would apparently restrict the term “musical instrument” to an instrument which would produce a continuous melody. Of the triangle it was said:

The testimony shows that it is used in orchestras or bands, “and used mostly as drummers’ traps”; that it produces a harmonious sound, but could not be used to produce a continuous melody, and that a chromatic scale could not be played upon it.
Of itself it is evident that this article is not a musical instrument.

We think the board took too narrow a view of the term “musical instrument” as it is ordinarily employed. As we have seen, lexicographic definitions are not in accord with the view expressed.

The decision of the board is reversed, and the assessment of the collector affirmed.  