Von Bremen v. United States

• Decision Date: 08 January 1912
• Docket Number: 31.
• Citation: 192 F. 904
• Parties: VON BREMEN et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

192 F. 904

VON BREMEN et al. v. UNITED STATES.

No. 31.

United States Court of Appeals, Second Circuit.

January 8, 1912

Lange &amp Kroyer, Sullivan & Cromwell, and F. D. Pollak (Gustav Lange Jr., Hjalmar H. Boyesen, and J. Hampden Dougherty, Jr., of counsel), for plaintiffs in error.

Henry A. Wise, U.S. Atty. (Robert Stephenson, Asst. U.S. Atty., of counsel), for the United States.

Before LACOMBE, COXE, and WARD, Circuit Judges.

WARD Circuit Judge.

This is an information under the food and drugs act of June 30, 1906 against the defendants, who compose the firm of Von Bremen MacMonnies & Co., containing two counts. The first count charges them with delivering for shipment from New York to Galveston a can bearing the label, 'Imported Salad Oil Morel Brand,' which was a misbrand because it was false and misleading, in that it indicated that the contents of the can was olive oil, whereas it was sesame oil. The second count charges that the same can was misbranded, in that it was labeled or branded so as to deceive and mislead the purchaser into believing that it contained olive oil, whereas it contained sesame oil.

The first count falls within the first subdivision of section 8 of the act as to foods, viz., that the article 'was offered for sale under the distinctive name of another article,' namely, olive oil. The second count falls within the second subdivision, viz., that the article was 'labeled or branded so as to deceive and mislead the purchaser,' namely, by making him think he was getting olive oil, whereas he was getting sesame oil.

The trial judge, taking judicial notice that standard lexicographers define the words 'salad oil' as 'olive oil,' denied the defendants' motion to quash the information on the ground that it alleged no offense, and afterwards, it being stipulated that the can contained sesame oil and not olive oil, he denied the defendants' motion to direct a verdict in their favor. These rulings were within our decision in the Brina Case, 179 F. 373, 105 C.C.A. 558. The government thereupon rested, and the defendants showed by a large number of witnesses that for some 40 years a perfectly healthy oil for edible purposes had been made from cotton seed and sold in enormous quantities in this country as 'salad oil,' and that other edible oils were made from the seed of sesame, a kind of grass, and from peanuts and from corn and sold as salad oil. The oil in question is sesame oil imported by the defendants. The defendants also showed that olive oil is always, except perhaps in the case of one brand, labeled and sold as olive oil; that it is four times as expensive as the oils sold as salad oils and that these other oils are sold in vastly greater quantities, the American Cotton Seed Oil Company selling from 176,000 to 200,000 barrels and the Union Cotton Seed Oil Company 40,000 barrels a year of salad oil made from cotton seed.

In reply to this the government called two purchasers of oil Edward Nougaret, steward of the Cafe Martin (in this country a month), who testified that nothing but olive oil was used there. Francis J. Englefield, purchasing agent of the Hotel Knickerbocker, testified that nothing...