Glaser, Kohn & Co. v. United States

• Citation: 224 F. 84
• Decision Date: 20 May 1915
• Docket Number: 2151.
• Parties: GLASER, KOHN & CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

224 F. 84

GLASER, KOHN & CO. v. UNITED STATES.

No. 2151.

United States Court of Appeals, Seventh Circuit.

May 20, 1915

'Steele-Wedeles Co., City-- Gentlemen: Replying to your favor 10th inst would say we hereby guarantee that all goods as furnished you hereafter will comply with the Food and Drugs Act of June 30 1906, with the understanding, however, that if we at any time use labels or packages furnished by you, or gotten up as per your instructions, we shall not be responsible for the form or wording of the same, but only guarantee that goods covered by same are not adulterated. It is expressly understood that the above shall hold good until notice of revocation be given in writing.

'Truly yours On or about January 15, 1907, plaintiff in error executed and delivered to Steele-Wedeles Company, of Chicago, Ill., a guaranty in writing signed by it, which guaranty reads:

Glaser Kohn & Co.,

'G. D. Glaser, Pres.'

Afterwards, and on or about September 15, 1910, and while said guaranty, by its terms, was in full force, plaintiff in error sold and delivered to said Steele-Wedeles Company two dozen jars of preserves, described as 'Herald Brand Fruit Preserves Blackberry Flavor, Apple Preserves 74%, Blackberry Preserves 26%,' which jars of preserves Steele-Wedeles Company shipped in interstate commerce from Chicago to Rock Springs, in the state of Wyoming, on or about October 14, 1910. On or about October 20, 1910, an inspector of the United States Bureau of Chemistry purchased a sample of these preserves and sent the same, properly sealed, to the Bureau of Chemistry of the Department of Agriculture, where it was duly examined by experts on or about December 8, 1910, who pronounced the sample analyzed to contain mold, and to be partly decomposed, and made from partly decomposed fruit. Thereafter the United States filed its information, containing six counts, against plaintiff in error, of which only the fourth count is here involved, which charges plaintiff in error with unlawfully knowingly selling and delivering to Steele-Wedeles Company the said jars of preserves, contrary to the provisions of the so-called Pure Food Law of the United States, approved June 30, 1906, entitled 'An act for preventing the manufacture, sale or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines and liquors, and for regulating traffic therein, and for other purposes,' in that said jars of preserves, when and where they were so sold and delivered, were an adulterated article of food within the meaning of the act, and consisted in part of decomposed vegetable substance, and further charging that Steele-Wedeles Company shipped said jars contrary to law, by way of a common carrier in interstate commerce to Rock Springs, Wyo., as aforesaid, basing said information upon said guaranty as having been given and received under the terms of section 9 of said act of June 30, 1906.

On the trial the formal facts were stipulated into the record, and evidence of the condition of the preserves when delivered to Steele-Wedeles Company was introduced. This evidence consisted of the opinions of experts, based on the conditions found at the time of the Washington analysis, that the fruit was partly decomposed, not only at that time, but also at the time of the sale and delivery by defendants to Steele-Wedeles Company. Plaintiff in error offered no evidence, but saved exceptions to the introduction of the said letter of guaranty and to the sufficiency of the expert testimony. At the close of the evidence plaintiff in error moved the court to direct the jury to find plaintiff in error not guilty, which motion the court denied, and an exception was taken. Exception was also taken to that part of the court's instruction which charged the jury that the said guaranty was a legal guaranty. The jury found plaintiff in error guilty, and the court assessed a fine of $200 and costs, to reverse which sentence this writ of error was sued out.

The errors relied on are: (1) The court held that the alleged guaranty was legal and sufficient to hold plaintiff in error under said section 9. (2) The evidence was insufficient to show that the preserves were adulterated at the time they were delivered to Steele-Wedeles Company.

Thomas E. Lannen, of Chicago, Ill., for plaintiff in...