232 F. 443 | 8th Cir. | 1916
De Witt sued the collector of internal revenue to recover taxes, penalties and interest assessed against him as a manufacturer of adulterated butter and against his product, and paid under protest after an unsuccessful application to the Commissioner of Internal Revenue for their abatement. A trial to a’jury resulted in a verdict and judgment for the defendant, and De Witt, the plaintiff, prosecuted this writ of error.
The act of Congress applicable to the case provides;
“That ‘adulterated butter’ is hereby defined to mean a grade of butter produced by mixing, reworking, rechurning in milk or cream, refining, or in any*444 way producing a uniform, purified, or improved product from different lots or parcels of melted or unmelted butter or butter fat, in which any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the effect of deodorizing or removing therefrom rancidity.” Act May 9, 1902, § 4, 32 Stat. 194.
The plaintiff conducted a creamery and butter factory at Denver, Colo. The surplus butter made by him in the summer months when cream was plentiful was put up in 200-pound cubes, carefully packed, and put in cold storage at a low temperature until fall or winter, when the supply of cream lessened and the demand for butter increased. The surplus in storage was then taken out, reworked, and put upon the market. In the process of reworking the cubes were cut into small pieces and put in a tempering vat, where they were left until they became plastic. The vat was in two compartments, one for the pieces cut from the exterior of the cubes to a depth of two- or three inches and the other for the inner portions. The vat contained about 200 gallons of hydrant water raised to an appropriate temperature, into which was introduced a small quantity of lime water. When in a-workable condition the pieces were removed from the vat, separately rechurned, and washed in clear water, salted, and molded into small forms for the market. The controversy was over the condition of the exterior portions of the large cubes of butter taken from the cold storage warehouse and the purpose and effect of the use of lime water. The plaintiff contended that the parts in question'were sweet-in fact and in odor, and that the lime water was added to the water in the! tempering vat to -counteract its tendency to become stagnant, and also as a preservative, like salt, to prevent the butter from deteriorating after being put upon the market. The defendant contended that the butter particles had an offensive odor and were rancid, and that within the definition of the statute the lime, an. alkali, was “used for the purpose or with the effect of deodorizing or removing therefrom rancidity.”
“We do not regard any of these cases as committing this court to the general doctrine that such memoranda are admissible for any other purpose than to refresh the memory of the witness.”
The judgment is reversed, and the cause is remanded for a new trial .