United States v. King & Howe

Citation78 F.2d 693
Decision Date15 July 1935
Docket Number297.,No. 296,296
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
PartiesUNITED STATES v. KING & HOWE, Inc., et al. (two cases).

Olvany, Eisner & Donnelly, of New York City (Samuel Michelman and Oscar Igstaedter, both of New York City, of counsel), for appellant.

Martin Conboy, U. S. Atty., of New York City (David W. Wainhouse, Asst. U. S. Atty., of New York City, of counsel), for the United States.

Before MANTON, SWAN, and CHASE, Circuit Judges.

SWAN, Circuit Judge.

These two actions were tried together upon stipulated facts before a jury of one which was directed to return a verdict for the plaintiff.

Both actions are upon the same bond and each deals with an importation of stramonium herbs in bales. Upon arrival these herbs were delivered by the collector of customs to the importer, King & Howe, Inc., under a term entry bond executed by the importer as principal and Royal Indemnity Company as surety. The complaints allege that the herbs were imported under a name recognized in the United States Pharmacopoeia and were found, upon an examination of samples, to vary from the Pharmacopoeia standard. Because of noncompliance in this respect with the provisions of the Food and Drugs Act (21 USCA § 1 et seq.), the importer was instructed to destroy or export the herbs within three months, and on failure to do so was notified to return them to customs custody. The importer failed to redeliver them to customs custody and thereby incurred, it is charged, a penalty of a sum equal to the invoice value of the merchandise plus duty thereon. To recover this sum suit was brought upon the bond. The appellant disputes that there was noncompliance with the Food and Drugs Act and contends also that there was no breach of the bond because its terms did not require a redelivery of the merchandise to the collector upon his demand.

Before proceeding to the merits of the controversy it is necessary to consider a question of appellate jurisdiction suggested, but not argued, by the appellee. Such a question must be decided even though the parties do not press it. The judgment was joint against principal and surety, but the surety alone appealed. This would be a fatal defect unless there was a summons and severance or something equivalent thereto. Hartford Accident & Indemnity Co. v. Bunn, 285 U. S. 169, 52 S. Ct. 354, 76 L. Ed. 685; Schwartz v. Weingart, 76 F.(2d) 863 (C. C. A. 2). It appears from a stipulation filed in this court that in each of the cases the petition and order allowing the appeal, the assignment of errors, and the citation were duly served upon the defendant King & Howe, Inc., and its attorneys. Within the principles discussed in Masterson v. Herndon, 10 Wall. 416, 19 L. Ed. 953, we think this was sufficient to enable the surety to prosecute its appeal alone. Mr. Justice Miller there stated that the Supreme Court did not attach importance to the technical mode of proceeding called summons and severance but would have sustained the appeal had it appeared in any way by the record that the nonjoining defendant had been notified in writing to appear and had failed to do so. He intimated that a failure to appear after notice would estop the nonjoining party from bringing another appeal for the same matter, and would permit the court to execute the judgment against him. In the Bunn Case, already cited, Mr. Justice McReynolds noted in 285 U. S. 169, at page 177, 52 S. Ct. 354, 356, 76 L. Ed. 685, that there was no summons and severance, "nor any notice equivalent thereto." See, also, Farmers' Loan & Trust Co. v. McClure, 78 F. 211, 213 (C. C. A. 8); American Baptist Home Mission Society v. Barnett, 26 F.(2d) 350, 352 (C. C. A. 2).

The present record contains no bill of exceptions signed or allowed by the district judge. The appellee contends that we are therefore confined to a review of the judgment roll and can consider only whether the pleadings are sufficient to support the judgment. Such is the general rule. United States v. Hill, 34 F.(2d) 133, 135 (C. C. A. 2). The appellant, however, urges that the stipulated facts may be considered although not incorporated in a bill of exceptions. See Mound Coal Co. v. Jeffrey Mfg. Co., 240 F. 129, 130 (C. C. A. 4). But it is unnecessary to decide whether the stipulated facts are before us. If the complaint is defective, the stipulated facts, if considered, contain nothing which could cure such defect, and, if it is sufficient, there is nothing in the evidence that would aid the appellant.

The appellant contends that the complaint is fatally defective in that it fails to allege noncompliance with the Food and Drugs Act. The allegation in question states that from an examination of samples the "importation was found not to comply with the provisions of the Food and Drugs Act of June 30, 1906, and amendments (21 USCA § 1 et seq.), in that it was found to be adulterated, since it is a drug under a name recognized in the United States Pharmacopoeia, and differed from the standard of strength, quality and purity given therein." The appellant argues that within the definition of "adulteration in drugs," as stated in section 7 of the act (21 USCA § 8) and the regulations adopted pursuant to section 3 thereof (21 USCA § 3), a drug is not adulterated, even though it deviates from the standard set out in the official Pharmacopoeia, if it is properly labeled, and, therefore, the complaint must also charge that it was not properly labeled. Section 7 reads as follows (34 Stat. 769 (21 USCA § 8):

"* * * for the purposes of this Act sections 1 to 15, inclusive, of this title, an article shall be deemed to be adulterated:

"In case of drugs:

"First. If, when a drug is sold under or by a name recognized in the United States Pharmacopœia or National Formulary, it differs from the standard of strength, quality, or purity, as determined by the test laid down in the United States Pharmacopœia or National Formulary official at the time of investigation: Provided, That no drug defined in the United States Pharmacopœia or National Formulary shall be deemed to be adulterated under this provision if the standard of strength, quality, or purity be plainly stated upon the bottle, box, or other container thereof although the standard may differ from that determined by the test laid down in the United States Pharmacopœia or National Formulary."

The regulations appear in Circular 21, 8th Revision, issued by the United States Department of Agriculture, August 7, 1922, and Regulation 8, section 7, reads as follows:

"(a) A drug sold under or by a name, or a synonym, recognized in the United States Pharmacopoeia or National Formulary, unless labeled as prescribed by paragraph (b) of this regulation, shall conform to the standard of strength, quality or purity for the article as determined by the test laid down in the United States Pharmacopoeia or National Formulary official at the time of investigation. * * *

"(b) A drug sold under or by a name, or a synonym, recognized in the United States Pharmacopoeia or National Formulary which does not conform to the standard of strength, quality, or purity for the article as determined by the test laid down therein shall be labeled with a statement to the effect that the drug is not a United States Pharmacopoeia or National Formulary article; in addition it shall be labeled with a statement showing its own actual strength, quality, or purity, or else with a clear and exact statement of the nature and extent of the deviation from the standard of strength, quality, or purity set out for such article in the United States Pharmacopoeia or National Formulary."

It is a recognized rule of pleading that where a party relies upon a statute containing a general clause followed by an exception or proviso in a subsequent substantive clause, such exception is a matter of defense and need not be negatived. United States v. Cook, 17 Wall. 168, 176, 21 L. Ed. 538; Schlemmer v. Buffalo, Rochester, etc., Ry., 205 U. S. 1, 10, 27 S. Ct. 407, 51 L. Ed. 681; Manhattan Oil Co. v. Mosby, 72 F.(2d) 840, 843 (C. C. A. 8); United States v. Murphy & Co., 7 Cust. App. 35, 37; Steel v. Smith, 1 B. & Ald. 95, 99. Within this rule we think the complaint sufficiently charged a violation of the statute by alleging the...

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11 cases
  • Benitez v. Bank of Nova Scotia
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 21, 1940
    ...was evidently considered by the District Court not to be necessary to the perfecting of the appeal (see United States v. King & Howe, Inc., 1935, 2 Cir., 78 F. 2d 693, 695), for on the same day the court issued an order granting appellant's petition for leave to appeal and citation was serv......
  • United Drug Co. v. Helvering
    • United States
    • U.S. Court of Appeals — Second Circuit
    • January 8, 1940
    ...to assume a jurisdiction not conferred upon them, applies as well to circuit courts of appeals as to the Supreme Court. United States v. King & Howe, 2 Cir., 78 F.2d 693; In re Perlman, 7 Cir., 68 F.2d 729; Osborn v. United States, 4 Cir., 50 F.2d Petition dismissed. 1 "A review of the deci......
  • McCrone v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 13, 1938
    ...8 Cir., 14 F.2d 406; Nixon v. Michaels, 8 Cir., 38 F.2d 420; Cory Bros. & Co. v. U. S., 2 Cir., 47 F.2d 607; United States v. King & Howe, 2 Cir., 78 F.2d 693; Osborn v. United States, 4 Cir., 50 F. 2d 712; In re Perlman, 7 Cir., 68 F.2d 729. If the order attempted to be appealed from is ci......
  • Rosen v. Brookhaven Capital Management, Co., Ltd.
    • United States
    • U.S. District Court — Southern District of New York
    • March 7, 2002
    ...260 U.S. 353, 356-57, 43 S.Ct. 132, 67 L.Ed. 301 (1922); accord Bowles v. Wheeler, 152 F.2d 34, 41 (9th Cir.1945); United States v. King & Howe, 78 F.2d 693, 696 (2d Cir.1935); United States v. Acnotabs, 207 F.Supp. 758, 768 (D.N.J.1962). Courts have also specifically held in the securities......
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