State v. Caspare
| Decision Date | 02 February 1911 |
| Parties | STATE v. CASPARE et al. |
| Court | Maryland Court of Appeals |
Appeal from Criminal Court of Baltimore City; John J. Dobler, Chas W. Heuisler, and Henry Duffy, Judges.
Henry Caspare and another were indicted for crime, and from an order adjudging that a plea to the first count of the indictment was sufficient, and sustaining a demurrer to the second and third counts, the State appeals. Affirmed.
Argued before BOYD, C.J., and PEARCE, SCHMUCKER, PATTISON, and URNER, JJ.
Eugene O'Dunne and Randolph Barton, Jr., for the State.
German H. H. Emory, Morris A. Soper, and John Hall Jones, for appellees.
The appellees in this case, the defendants below, were indicted in the criminal court for Baltimore city under an indictment containing three counts.
The first count charges, in substance, that the defendants did unlawfully use a scheme and device in the nature of a gift enterprise for the sale of merchandise, in that they did sell and deliver to one Benjamin B. Barber, Jr., 18 bars of soap and, in connection with such sale and delivery, did then and there give and issue to the said Barber, as an inducement to said purchase, 10 stamps, commonly called "trading stamps," that had been furnished to the defendants by certain other persons engaged in the trading stamp business to wit, the Sperry & Hutchinson Company, a body corporate, to be used by the defendants in connection with the sale of merchandise by them, which said stamps the said company, being then and there the agent of the said defendants, had agreed to redeem, upon presentation to it, and in exchange therefor to give to the holder thereof something uncertain, undetermined, and unknown to the said Barber at the time of said purchase; and, as alleged, in violation of section 263a of chapter 207 of the Acts of 1898, and codified in the code of 1904 as section 404 of article 27.
In the second count they were charged with the violation of section 412 of chapter 381 of the Acts of 1910, in that "none of which said trading stamps (so issued by them) did then and there have a monetary redeemable value of at least one cent current money."
The third count charges, in substance, that the defendants unlawfully failed, at the time of the issue of said stamps, to deliver to said Barber, the receiver of said stamps, a printed or written statement clearly setting forth the date and place of issue of said stamps, and every right given to the receiver thereof, also the names of the defendants issuing and the name of said Barber, the receiver of said stamps, also a full and itemized list of each and every article for which said stamps either singly or in connection with other similar stamps might thereafter be exchanged or redeemed by the holder thereof, and also the exact number of such stamps required for the redemption of each of said specific articles or things enumerated in such statement; and, as alleged, in violation of section 412a of chapter 381 of the Acts of 1910.
The defendants filed a special plea to all three counts of the indictment, alleging, in substance, that they (the defendants) were on the 11th day of May, 1910, engaged in the retail grocery business in the city of Baltimore, and that on said last-named day they, at their place of business, sold unto one Benjamin B. Barber, Jr., certain merchandise, at and for the sum of $1 which was paid to them in cash, and that at such time the defendants delivered to the purchaser ten coupons, tickets, or vouchers known as the "Sperry & Hutchinson green trading stamps," being at the rate of one stamp for each ten cents of merchandise so purchased, pursuant to the terms of a written contract or agreement existing between the defendants and the Sperry & Hutchinson Company, a foreign corporation duly authorized to transact business in the state of Maryland, whereby the said company furnished said trading stamps to the defendants, who agreed to deliver said stamps to their customers as an inducement for cash trade. By the contract it was agreed by the company: That it would redeem said stamps with goods and merchandise when presented by the customers of defendants in its trading stamp books in lots of 990 stamps, and according to law, "collected in the manner prescribed and subject to the conditions" in the trading stamp books of the company hereinafter referred to. One of which conditions is as follows:
That said company is engaged in the business of advertising defendants and other merchants in the city of Baltimore for the purpose of increasing the trade, and especially the cash trade of such merchants as contract for its services. That the company maintains a three-story and basement store on N. Howard street in the city of Baltimore, and also a store in the large department store of Stewart & Co., in said city. These stores are stocked with goods, wares, and merchandise, consisting of sideboards, chairs, china closets, tables, lamps, desks, bookcases, rugs, bedspreads, silver ware, plated ware, china, cut glass, pictures, statuary, musical instruments, and various other classes of articles for household use, and are open to the public during the business hours of each day, and the company by various methods of advertising invites the public to enter and inspect said merchandise, which is of the value of many thousand dollars. Each of said articles bears a printed tag correctly showing the number of stamps in exchange for which said company offers to give such articles free of charge to the person presenting such stamps. That the company employs numerous persons in said stores and as canvassers, who go from house to house in Baltimore city, and especially in the neighborhood of defendants' store, all of whom explain to the general public that the company will deliver said articles of merchandise in exchange for Sperry & Hutchinson green trading stamps in certain numbers. That the canvassers carry with them catalogues containing many hundred illustrations of the merchandise carried by said company in said stores, which catalogues describe said articles and state the number of stamps accepted in exchange for each article. Said catalogues and directories containing the names of the merchants of the city dealing in such stamps, and trading stamp books are left at the houses by the canvassers. That the offer of the company was, until the passage of the act of 1910, known as the "Trading Stamp Act," also brought to the attention of the public by means of large and frequent advertisements thereof in the newspapers of Baltimore city, at which time the newspapers refused to accept advertisements offered by the company; since then, as well as before, they have advertised in various other ways. The agents of the company inform the public that said stamps may be procured from those merchants with whom the company has advertising contracts, and the said merchants will deliver said stamps to the customers as an inducement for cash trade.
That by experience the company has found that the stock which is usually carried in its stores is sufficient to redeem all of the stamps presented for redemption in the usual course of business, which stock is about two thirds of that required to redeem all of its outstanding stamps if all were presented for redemption at the same time. That it is fully able and willing, however, at all times to purchase and provide sufficient articles equal in value to the articles kept in its stores for the redemption of all of its outstanding stamps. That it replenishes its stock from time to time with articles of identically the same make and nature, while other articles are not replaced, but for them are substituted other articles of attractive character and of the same relative value, particular regard being had to the seasons of the year and the requirements of the public based upon its experience. The company also, when requested, agrees for a reasonable time to set aside any particular article in its stores selected by a collector of stamps, although such collector may not have, at the time of such request, the number of stamps required for such article. Such change as the company makes in the kind and character of its merchandise is made for the purpose of accommodating the varying tastes and meeting the requirements of the public.
The plea alleges: That there is no time limit placed by said company within which the stamps received by Barber, or any of the stamps issued by said company, must be presented for redemption. That different collectors of stamps take different periods of time to fill a trading stamp book for redemption, depending upon the amount of purchases with which they receive stamps, and that the company maintains throughout the United States more than 450 stations or stores in any one of which said trading stamps received by Barber would be redeemed. That the stamps are without intrinsic value, and are delivered to their customers only as evidence of payment in cash, and as an inducement for such payment because of their value in...
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