*1 appellee, a claimed for the trans- it Whether a consideration. quent for question the in- here in not within the upon action depends sale occurs taxable present taxing Congress their If had statute. gathered parties of the tention whole every intended levy words to a tax on transfer to the giving when writing expressed purpose of title its significa- it could ordinary have used, their phrases sentence, in a it is clear from tion. language the section that intended present parties in the The intention of sales. to confine the tax actual We to and the agreement reinsurance so-called importance vesting attach no to the of the to seem pursuant thereto executed deeds estate, any, real in the hands the are if convey legal naked express purpose a to policies reinsurer when the liens on the discharged to the question the real estate title of expiration of fifteen or at the purpose managing, grantee for the years. the real estate liquidating serving and yet received the The has not as reinsurer of the policyholders of the benefit beneficial the real estate and title to company. insolvent acquire never that event occu"s it. When the instruments provisions The due, any, can be levied. the tax then consistent with the existence of are relationship residuary uncertain is now balance too agent, principal and but are for tax measurement. relationship of vendor inconsistent with the and opinion In the trial erred in court opinion that We are of the vendee. appellee’s ap- sustaining to dismiss motion sale, but an the transaction was not pellant’s petition. Judgment reversed agreement. title agency The transfer of proceedings further cause remanded for price transfer it agreement or the to opinion. consistent with this promise paid is the essence of a sale. puts If such a transfer the transferee him position an and makes owner debtor for an liable to the transferor price agent agreed merely an proceeds who must account for resale, is a sale. The the transaction delivery agency an sell is the essence of property agent as his but as the an McNUTT, CHEESE CO. et al. v. COLUMBIA property principal remains the who Security Adm’r. sales, right has the to control owner and terms, prices No. 239. fix demand and receive proceeds agent’s less the commission Appeals, Court Second Circuit. upon Applying the sales made. correct Aug. 20, 1943. question, the transaction here in rule to agency characteristics of has all the an The reinsurer obligated sell. pay any fixed sum to the receiver or to policyholders. obligation the reinsured ceased when it distributed on policies Its maturing premium accumulations and proceeds the sale sale assets. The approved by the assets had to be subject the vendor and was also approval of court. reinsurer re compensation, ceived fixed and for its services had account to the court for the proceeds premium sale accumu When the contract lations. in whole, and deed here properly question construed as a opinion in our there was created an agency sell and not the relationship vendor and vendee. The word “sold” in the anything contrary, absence of be assumed but its signification, to have usual giving to the word the broader meaning *2 Fromer, City New York Martin A. Pfeffer, (Martin A. Fromer and Leo both City, counsel), peti- New York for tioners. Atty. Gen., Berge, Wendell Asst. Jennings, Oscar A. Provost and Edward G. Sp. Atty. (Edward Assts. to Gen. B. Wil- liams, Atty., Security Agency, Federal Washington, C., counsel), re- D. for spondent. CLARK, SWAN, CHASE, Before Judges. Circuit CHASE, Judge. petitioners are cheese manufacturers allege adversely they who affected by the order regulations which will greater be discussed later in detail and brought proceeding judicial re- 701(f) view accordance with of the § Act, 21 371(f), provides which U.S.C.A. § for such a cases of review in actual con- troversy. proceedings The administrative led to the issuance of the order here August began under review with object establishing a definition and cheese; identity standard of for cream proposed these resulted order which 28, 1940, September issued on proposed regulation. of fact and a application petitioners, But on who order, exceptions hearing filed reopened consolidated hearing proposals for standards neufchatel, cottage and creamed resulted in final hearing cheeses. This 22, 1942, order December sub- stantially rejected petitioners’ arguments evidence; finally, allow whether substantial which would standards favor of standard, which in the creamed moisture content higher lower after the of milk fat cheeses. calls the addition the manufacture of curd, and not is valid. making Regu- regulations, Code *3 21, 19, now lations, which are helpful Title Pt. the to state at It will be follows: under attack are substance scope an order outset that the of review of cheese Food, oream requires that Sec. 19.515 of the Administrator of the necessarily of by weight less than Drug contain and Act is Cosmetic 33% moisture; limited, Security of milk-fat and not over as Federal Administrator 55% pasteurized Quaker Co., from a 63 S.Ct. that it must be made Oats 318 U.S. - milk or 589, clearly enough, with of cream starting mixture 87 L.Ed. shows both, may be added the to which the of skim milk or and does not allow substitution bacteria; producing judgment, though court lactic acid court’s even the “hot-packed” designated may and that reach a con- on the same record be to exceed moisture-retaining gums, Adminis- clusion different from that of the Administrator provided the trator. The order of the by weight, may be 0.5% presence sup- must, therefore, the affirmed if is is stated on gums of these be ported record by substantial evidence of Cream, or milk or a milk skim label. statutory and constitution- be and is within or all of these mixture of two then, pre- question, “hot-packed”; al limitations. The and used if the is largely specified, may not this review is water, sented since it determining Administrator’s whether the sets the standard be used. Sec. 19.520 supported by the evidence prescribes that were cheese and for neufchatel the and whether his order conformed to ingredients be manufacture and basic purposes except statutory of the Act. cheese the same cream may vary from 20 to milk fat content 32% there arc The Administrator found that up to a moisture content inclusive and produced 65% and marketed various requires that is Sec. 19.525 allowed. nature, that these of a soft uncured content of moisture cheese have a cheeses, they have similar char- while it be made and that no more separate distinct acteristics, have and 80% milk; and pasteurized sweet skim from same have the identities. These cheeses cottage cheese creamed 19.530 Sec. proteins of (coagulated basic constituents weight contain no more than must vary- milk, solids, nonfat milk and 80% soluble made so that at and must be of moisture fat) ing proportions and milk of water by “mixing milk fat is added least proportions changing it is 4% pasteurized cream cottage cheese mix- starting constituents basic cream with pasteurized mixture of or a in characteristics ture that the differences both.” or skim milk or milk uncured Of these soft are obtained. found to be cheese was cheeses cream questions presented review on this relatively low-moisture high-fat, Administrator’s definitions are whether the traditionally 35 to containing identity, establishing the 40% and standards less 55 to more of cream 50% fat and moisture content of good commercial moisture, although in supported by sub- neufchatel cheeses might vary practice percentages record; 2% are reason- stantial evidence manufacturer or below what above identity; standards able definitions and sought to obtain. dealing honesty fair promote consumers; establish manufacture problems in the the 'interests One question leakage under the foods cheese has been definitions of cream prac- moisture, so far as is common names renders cheese ticable; correspondingly less mer- whether the standards which fail attractive addition of water in thereabouts provide for the But in 1927 or chantable. leakage could “hot-pack” of manufacture of that moisture was discovered prevented the addition largely cheeses are reason- and neufchatel be evidence; such as carob gums, vegetable on substantial based harmless able whether karaya standard, gum, or gum, bean cottage cheese locust pasteurized and it was found requires gum; tragacanth purpose, gums for this milk, the Act of these is valid under and the use skim not be by weight, could requiring up the standard a maxi- whether 0.5% of cream content when the moisture moisture content is based on abused mum of 80% following But cream cheese mixture restricted. is is usually something be used less than discovery gum could 1%:% something of milk fat and less than prevent leakage it became the gum to heat A content many manufacturers moisture. moisture therefore, disperse was, together more than found so as and curd (4% homogenization, curd, by be milk fat gum By reasonable. in the “hot-pack” proc- reasonable) possible by to be it became found and lower known as creamed cheese can ess to raise losing like without of cheeses group of the cheese obtained. This neufchatel, cream cheese. appearance found and texture cream cheese most of the cheese highly perishable to be because Thus it was found *4 molds, from about process growth bacteria, yeasts by made contains and this by stopped 23 fat to which from about 60 could to some extent be 30% pasteurization mixture, moisture, whereas cheeses 65% produc- percentage same of fat moisture made to which is then added acid lactic by in- ing develop manufacture would These older method of bacteria. bacteria dependently that was have a texture than the others and account for softer spoilage found to be the traditional cream cheese. the eventual the cheese. Some per- It was found the desired also that manufacturers have added chemicals centage spoilage, fat in the “hot- was and moisture slow down but this pack” process by practice, could be obtained found to be uncommon aas trade or proper acquainted amounts of cream milk since consumers generally these, milk, process spoilage skim combination with the not and do homogenized; buy quantities before the curd is heated and soft in such uncured cheeses been problem. and that water has also used to make this a real on as Based milk be purpose, although findings can skim the Administrator issued accomplish anything that water regulations already referred to. adjustment. does in moisture petitioners’ objections chief One Consumers, found, readily it was cannot regulations promulgated by to the distinguish between the cream cheese made portion Administrator is that a substantial process lower-fat, the older and the of the cheese manufactured them must higher-moisture cheese made the “hot- designated be as neufchatel This cheese. pack” process; and since fat content is the follows from the that fact much of their expense chief item in such re- cheese fat contains of milk 30% cheaper product tailers sold sometimes and 57 to of moisture. Petitioners 61% as “cream cheese” which was natural position take the that the name neufchatel enough consumers, since unlike manufac- properly identify product fails turers, retailers, wholesalers and were consumers; it will that mislead always acquainted with or informed of the foreign sounding, easy pro it is qualification esoteric terms of used in the disrepute nounce and has fallen into trade, test,” “cheap,” as “low such “second product dislike because of an inferior grade,” 2,” or “No. as often as not some formerly name; marketed under the arbitrary cheaper prod- brand name. The imposes hardship an unreasonable uct being sold consumers was found industry; and that it will whole drive closely .administrator to be more akin to product from wholesome market. cheese, be neufchatel found to suggest And Administrator the common usual of a cheese name made would have done better he had used process cheese, by the same as cream but designation cream cheese with some having content of a minimum a fat of 20% B qualification sort of such as Grade and a content moisture of maximum function, our or No. 2. But is not as type prior This to about 65%. pointed been has out to substitute quantities, marketed in substantial proper judgment of what the market gradually declined until it He name for of the Administrator. progressive of a almost vanished because neufchatel; designation chose the product in cheapening quality. support substantial evidence there was witness, Stine, respect choice. One testi such a were, example, briefly, fied, that consumers would group cheese follows: cheaper cottage cheese is from if the continued made skimmed be misled he just about same labeled as cream cheese milk as to be way (cid:127) sure, as a what contradicted to be but never- therefore recommended neufchatel Moreover, substantial, much, find- if not were most there theless name. neuf- supported hy evidence that sold the dis- ings before group covery “hot-pack” process chatel the name of contained had been next which was of soft uncured cheeses below the 35 to fat from to 50% 40% high fat content cheese of moisture. the Administrator also And therefore justifiably It was fat known cream cheese. found that when the power within tent of the Administrator went down content moisture up smell, identify the kind that appearance, to petitioners cheeses of feel and taste name he did. make with the resulting product became into fact that neufchatel had fallen as con- characteristic of cream cheese disrepute particular it, in the 1920’s of no although sumers knew the demarcation find, as significance therefore, he could long He, so easy to define. did, made fat he that cheese found it reasonable to fix content of below and with a proper figure above as the cheese; content of above was not the for identifying cream and this 55'% traditionally cream cheese as was known. figure by allowing was arrived at a 2% petitioners’ that these Nor assertion does variation And of manufacture. *5 monop- identity create standards of a the he set maximum moisture content oly for manufacturer make the order 55%, petitioners point out, one at was the which as they make the peculiar 2¡% unlawful. If continue to say the least since a make, product they they can sell it now variation was not allowed in this neufchatel; they as and if want to make product. the his stituent of But decision product as cream a that can sell supported on 22 by this score is finding cheese, they only comply with the need product which that a shows more product the that the Adminis- moisture, standards of subjected if not trator has identified as cream cheese. “hot-pack” process, acquires different but closely related characteristics of cream petitioners argue that the The also cheese. That determination not un- was name, Administrator did not use the so reasonable in evidence of view practicable, far it was as leakage content exceeded sold; product that in identified the this in the amount absence specific finding of a that it the absence was retaining gums. finding The moisture that water was sometimes used manu- product practicable cream not to label by cheese, regulations identifying these adjusting in the moisture con- facturers groups various practicality of cheeses must fall. The tent, accomplish milk could but that skim name of one name another result, pre- the same and was therefore course, not, judg matter is scribed, supported by also evidence was the name though Even chosen ment. practice good that water in commercial product from the would drive a healthful was used. The Administrator could not' market, existing depress standards of because, we if he chose as believe this marketed, product name that being now reiterate, judgment it is his and not ours product from a can name withheld upon based given effect when must be by not us unreasonable be said to be finding facts in evidence. As findings improper long as there were so product accompanied was cheaper not support them substantial evidence to price, the in a uniform differentiation justified of the Adminis the action yet conflicting but again evidence was findings. And were such trator. there case with That is likewise the substantial. many findings attacked The relate 11 41 which findings unsupported by petitioners sub fat content of the mixtures. already are, we have stantial evidence regulations in findings intimated, supported by enough evidence cottage respect cottage creamed though they must stand even this so that upheld evi must also be on the might the same record have court on prescription of record. The dence a moisture this conclusion. See Fed reached a different Co., content of no more than Quaker Security Adm’r v. Oats eral that most 228, 589, on evidence was based substantial 218, 63 S.Ct. L.Ed. 318 U.S. 87 practice 37, contained 20, cottage good cheese in Findings which cover -. usually contained no more than this moisture contents pasteuriza- evidence, requirement supported As to some- less. are and ture supported evidence This seems tion, raised this was 57%. usually arbitrary disregard Finding done and that to me it was an findings that degree spoilage to some prevented 21. by killing highly perishable prohibition against As necessary bacteria, yeasts and molds there “hot-pack” process, water in the And the cheese. to the manufacture finding is a water is sometimes requiring the addition regulation (Finding finding no 27) and making after curd of fat to the why practice 4% of the must be discon- reason curd, instead sup- I think fail to tinued. port though some manu- Even unreasonable. part this order. use a prefer to facturers the Adminis- As to required, it was differing permissible the use ignored trator as to the evidence Ad- for the the evidence on unpasteurized milk. made skimmed He com- conclude ministrator right to finding subject. proper identification mercial present one if the is a barren evidence addition called See it. trier of fact fail to consider after of the curd since the formation Secretary Staley Mfg. E. A. Agriculture, Co. resulting prod- there was that the evidence Cir., I 261. 120 F.2d uct different. findings be- would send case back adequately Bound we part approving fore of the order. Administrator, supported findings of the supportable agree I the order Quaker Security Adm’r v. Oats far creamed so as it relates to upon Co., supra, them his action based cheese. cannot be disturbed. Affirmed. *6 SWAN, Judge (dissenting

part). my agree with brothers I am unable to FORAKIS UNITED respects STATES. be in all should order

affirmed. No. 2655. years having many For Appeals, Circuit Court of Tenth Circuit. 33,% fat has been of milk sold Aug. 20, 1943. every “cream Almost cheese.” exception industry, Kraft with the requirement Co., objects Cheese such called “neuf- cheese hereafter statute, chatel.” 21 U.S.C.A. au- § promulgate thorizes the Administrator food, regulations “establishing un- der its or usual name so far as common practicable, a reasonable definition and identity,” There is standard ing etc. find- impracticable that it is the com- distinguish mon between cheese name and adjectives, fat of different milk heavy example, light cream cheese finding at least a cheese. Without impracticability. deprive think it I unreasonable to industry the bulk of their

good will in the used name. Next, take standard fat Finding says moisture.

55'% percentages commercial vary 2,% of fat much recognition above or In of such below. 20) variation (Finding 35'% 33%, dropped for mois-