Hostetter Co. v. Bower

• Decision Date: 11 May 1896
• Citation: 74 F. 235
• Parties: HOSTETTER CO. v. BOWER.
• Court: U.S. District Court — Southern District of New York

74 F. 235

HOSTETTER CO. v. BOWER.

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

May 11, 1896

Albert H. Clarke and James Watson, for complainant.

Charles Putzel, for defendant.

COXE District Judge.

This cause turns solely upon a question of fact. The bill is based upon alleged unfair competition in trade. The defendant, who is a retail liquor dealer, is charged with fraud in selling as the genuine bitters of the complainant a cheap imitation thereof manufactured by one Emil Becker. It is alleged that he deceives the public by purchasing the spurious articles in large quantities and selling it to his customers from bottles which once contained the genuine Hostetter Bitters and still retain the complainant's labels and trade-marks.

The charge against the defendant is a serious one. He is accused of perpetrating a petty and contemptible fraud by which, for a paltry reward, he cheated not only the complainant but his own customers as well. The burden is upon the complainant to establish this charge by a clear preponderance of proof. Nothing must be left to conjecture or guesswork. The witnesses called for the complainant are not disinterested they are paid by the complainant to secure evidence against infringers upon its rights. Although there is nothing in their conduct to warrant the superlative denunciation which has been heaped upon them, it cannot be denied that their testimony must be scrutinized with unusual caution. They say that on several occasions at the defendant's place of business they purchased bogus bitters which were poured from genuine bottles. The defendant concedes the sales, but says that on each occasion he sold the genuine article. The proof that the bitters were spurious is confined to the opinions of the complainant's witnesses who tasted the bitters. Several bottles were produced before the examiner sealed. The seal has not been broken. No analysis of their contents has been made. They may contain imitation bitters and they may contain genuine Hostetter Bitters. The genuine and the counterfeit are alike in appearance and are somewhat similar in taste. The witnesses who give their opinion from taste merely may be mistaken. In short, the complainant's proof is not free from doubt. When, however, the testimony stands contradicted by every one connected with the transaction on behalf of the defendant the court would hardly be justified in saying that the complainant has sustained...