Glaser, Kohn & Co. v. United States

KOHLSAAT, Circuit Judge (after stating the facts as above). [1-3] 'Section 9 of the act approved June 30, 1906, reads as follows, viz.: “See. 9. That no dealer shall be prosecuted under the provisions of this act when he can establish a guaranty signed by the wholesaler, jobber, manufacturer, or other party residing in the United States, from whom he purchases such articles, to the effect that the same is not adulterated or misbranded within the meaning of this act, designating it. Said guaranty, to afford protection, shall contain the name and address of the party or parties making the sale of such articles to such dealer, and in such case said party or parties shall be amenable to the prosecutions, fines and other penalties which would-attach, in due course, to the dealer under the provisions of this act.” ’ It will be seen that this section does not, in terms, seem to comprehend a general continuing guaranty, but seems to apply to the specified article contemplated at the time. Such, indeed, is plaintiff in error’s contention. That construction, however, is narrow, and not in accord with the spirit of the, act, which should be construed in the light of its [87] purpose, as said by the Supreme Court in McDermott v. Wisconsin, 228 U. S. 115-128, 33 Sup. Ct. 431, 433 (57 L. Ed. 754, 47 L. R. A. [N. S.] 984, Ann. Cas. 1915A, 39), “and of the power exerted in its passage.” This purpose the court, in United States v. Antikamnia Co., 231 U. S. 654-665, 34 Sup. Ct. 222, 225 (58 E. Ed. 419, Ann. Cas. 1915A, 49), declares “is to secure the purity of food and drugs and to inform purchasers of what they are buying. Its provisions are directed to that purpose and must be construed to effect it.” As between a dealer, to whom the purity of the goods is guaranteed, and the manufacturer, who has the better opportunity of ascertaining the facts, the act aims to throw the ultimate responsibility on the latter, and it should therefore be interpreted, if reasonably possible, so as to carry out this purpose to the fullest extent. In our judgment it is therefore not only a fair, but the most reasonable, construction of the act to include within the scope of section 9 continuing guaranties, as well as those given ^at the time of the sale and in reference to specific goods. 'The belated position of plaintiff in error as to the meaning of the statute with regard to a continuing guaranty comes to us undermined with its earlier construction, contained in the letter wherein it says, “We hereby guarantee that all goods as furnished you hereafter will comply,” etc., and “it is expressly understood that the above shall hold good until notice of revocation be given in writing.” There is no reason in law for the claim that a continuing guaranty is invalid. When by the terms of a written guaranty it appears that the parties look to a future course of dealing for an indefinite time, or a succession o C credits to be given, it is to be deemed a continuing guaranty. Am. & Eng. Ency. of Law (2d Ed.) vol. 14, p. 1139. Letters of guaranty should receive a liberal, fair, and reasonable interpretation, so as to attain the object for which the instrument is designed and the purpose to which it is applied. Lawrence v. McCalmont, 2 How. 426-449, 11 L. Ed. 326. We are clearly of the opinion that the letter of January 15, 1907, constituted a good, valid, and sufficient guaranty under the provision of said section 9, and that said guaranty attached to every item of sale made by plaintiff in error to Steele-Weddles Company, after the sale thereof until revoked in accordance with the terms thereof, and that it furnished a basis for the filing of the information against plaintiff in error herein. [4] With regard to the sufficiency of the proof to sustain the verdict of the jury to the effect that the preserves in question were adulterated at the time they were delivered to Steele-Wedeles Company, and not prepared in accordance with said act of June 30, 1906, we find no such situation as would warrant us in substituting our opinion for that of the jury. While expert opinion evidence should be received with caution, it is solely within the province of the jury to determine its weight. They saw and heard the witnesses. In cases such as this much of the evidence must necessarily be opinion evidence. In the present case there is nothing in the evidence inherently impossible, or even improbable. The error is not well assigned. [5] With regard to the objection that the transaction does not, so far as plaintiff in error is concerned, come within interstate commerce, [88] plaintiff in error does not in its brief include it among the errors relied on. We are, however, satisfied that the point is not well taken. Steele-Wedeles Company was a wholesale grocer engaged in interstate commerce, as plaintiff in error well knew. By selling and delivering the preserves to that corporation upon the termsj of the guaranty, it deliberately placed them’ in interstate commerce channels, • The judgment of the District Court is affirmed.