Hennessy v. Wine Growers' Ass'n

• Decision Date: 19 March 1914
• Docket Number: 9-- 325.
• Citation: 212 F. 308
• Parties: HENNESSY et al. v. WINE GROWERS' ASS'N.
• Court: U.S. District Court — Southern District of New York

212 F. 308

HENNESSY et al. v. WINE GROWERS' ASS'N.

No. 9-- 325.

United States District Court, S.D. New York.

March 19, 1914

Adolph L. Pincoffs, of New York City, for James Hennessy and others.

Kiernan & Moore, of New York City, for Alexander Oliver Riddel and others.

Theodore Larson, of New York City (George Gordon Battle and Adolph L Pincoffs, both of New York City, of counsel), for the Hostetter Co.

Bandler & Haas, of New York City (Henry A. Wise and David Bandler both of New York City, of counsel), for Wine Growers' Ass'n.

HUNT Circuit Judge.

The bill charges sales by defendant of an article resembling in color, appearance, and flavor Hennessy Three Star brandy, the giving therewith of empty genuine Hennessy bottles, and the advising, counseling, suggesting, and assisting purchasers to place defendant's liquor in plaintiffs' bottles and to sell the same as genuine Hennessy brandy, all with intent to defraud.

This case was tried with seven others against the same defendant brought by the proprietors of Martell brandy, Canadian Club whisky, Hostetter's bitters, Gordon gin, Gilka Kummel King William whisky, and Usher's Scotch whisky.

In 1912 the defendant had from 32 to 36 stores in Greater New York, and in the summer of that year detectives in the employ of the plaintiffs in the several actions visited 11 of these stores representing that they desired to purchase bulk liquors that could be substituted for certain brands named, including Hennessy Three Star brandy. Defendant's employes, at the request of plaintiffs' agents, sold the bulk goods and furnished therewith empty bottles with plaintiffs' labels thereon. The record is voluminous, but from the entire testimony I find that at one of defendant's stores Weiler, the manager, believing that he was dealing with yacht clubs, fishing clubs, and stewards, sold goods in bulk and furnished therewith empty bottles from time to time. O'Hare, one of plaintiffs' detectives, says that Ramme, manager of another of defendant's stores, referred him to Weiler as making a practice of selling bulk goods for refilling. The testimony is that Weiler volunteered to furnish empty bottles, promised to send bottles with clean labels, and advised that a genuine bottle of each brand be kept on the shelf back of the bar that it might be opened in the presence of a customer in case of complaint. Weiler said, however, that he supplied the trade in the neighborhood, mentioning several names, and that he had never had a complaint on the goods he furnished. On three separate occasions Weiler received and filled orders from plaintiffs' detectives and delivered as many lots of empty bottles, each lot including a Hennessy bottle. At three other stores, 663 Sixth avenue, 92 Lenox avenue, and 21 Columbus avenue, goods were sold and empty bottles delivered under circumstances similar to those at Weiler's place; and at still another store, 2085 Amsterdam avenue, bulk goods were negotiated for and bottles promised.

While it is admitted that some of the liquors and bottles in evidence were furnished by defendant's agents, it is denied that anything was said about refilling at the time the sales were made. But the great weight of the evidence is that defendant's employes who sold the goods well understood that the bulk goods with which they furnished empty bottles were to be used for refilling. The witness Schmidt, called by defendant, said in part:

By the Court: Q. You said that something was said about refilling. Now, did you believe that he wanted wines or liquors to refill bottles? A. Well, yes; I did.

Q. Well, why did you sell them to him? Did you know that you might get into trouble over that sort of thing? A. Why, no; I had never had that experience before, and they told me they were giving these goods away and they were trying to save expenses, and I did not think anything of it.

Q. In your former experience, Mr. Schmidt, what had you been doing with your Gordon gin bottles, for instance, and Hennessy brandy bottles? A. Any bottles that had names in them we used to throw away. Other bottles, branded bottles, Black & White bottles, Port bottles or flasks, we kept them until we got three or four crates, and then we returned them to headquarters, and they used them down there.

Q. Did you not know that you ought not to take, for instance, an Irish whisky bottle of the brand of Jameson's and to sell a whisky that looked like it for the purpose of putting it into the Irish whisky bottle? A. Well, I never thought of it.

Q. I only want you to tell me exactly your own view; I just want you to tell me what you know and what you believe, and nothing else; that is all Mr. Wise wants you to tell, and that is all Mr. Battle wants you to tell. A. I didn't even think of it anyway; they said they wanted-- the way they put it to me, to save expenses. They said they were giving the stuff away, and I thought I could give them just as good goods.

Q. You believed that, did you? You believed what they said to you? A. Yes, sir.

Q. Mr. Wise has asked you to tell anything that you can recall. Wasn't that the substance of your last question?

Mr Wise: Yes, sir. I want you to tell the court your recollection of whatever was said in this entire visit there, of Moore and this man Naughton; while those two men were in there talking...