325 Mass. 599 | Mass. | 1950
This is a bill in equity for declaratory relief under G. L. (Ter. Ed.) c. 231 A, inserted by St. 1945, c. 582, § 1. The bill alleges that a controversy has arisen between the plaintiff and the defendant, as to whether the cellulose gum manufactured by the plaintiff and known as CMC, is a vegetable gum within the meaning of G. L. (Ter. Ed.) c. 94, § 65G, inserted by St. 1934, c. 373, § 1. That section provides that frozen custard, ice cream, ice cream mix, ice milk and milk sherbet may contain “stabilizer,” which is defined as “pure gelatine or vegetable gums.” The defendant contends that said cellulose gum is not a vegetable gum, and that manufacturers of ice cream may not use it as a stabilizer in their product without being subject to prosecution.
The defendant does not contend that the injunctions granted were improper if the finding that CMC is a vegetable gum is to stand. The evidence, consisting of the expert testimony of chemists, some of it conflicting, is reported. A careful examination of the evidence, together with the exhibits, discloses no error in the conclusion of the judge that the plaintiff’s product is a vegetable gum. By the familiar rule, we do not reverse findings made upon oral testimony unless convinced that they are plainly wrong. Trade Mutual Liability Ins. Co. v. Peters, 291 Mass. 79, 84. King v. Grace, 293 Mass. 244, 248. Spiegel v. Beacon Participations, Inc. 297 Mass. 398, 407. Boston v. Santosuosso, 307 Mass. 302, 331. Moroni v. Brawders, 317 Mass. 48, 56. Barnum v. Fay, 320 Mass. 177, 180.
Decree affirmed with costs.