111 F. 737 | U.S. Circuit Court for the District of Southern New York | 1901
This is an action to restrain unfair trade. The defendant is charged with having sold a cheap imitation article as genuine Hostetter’s Bitters. These bitters are prepared only by the complainant. They are made by a secret formula. The law applicable to this situation is well settled and need not again be stated.
“I try to make them as near right as I possibly can; I get a bottle from Acker, Merrall & Condit occasionally as a guide so as to make the I-Iostetter’s Bitters right in color and as near the taste as possible.”
Pfeiffer was not called as a witness and this statement stands unchallenged, except by a qualified denial from a young woman who was employed by the defendant. No excuse, which the court can consider, is given for the failure to contradict this inculpating evidence, and, of course, the presumption is that had the witness been called he would have been unable to deny its truth. The only excuse suggested i's found in the defendant’s brief, and is as follows:
“In case the absence of Mr. Pfeiffer should be commented on by plaintiff, we would say that this man Pfeiffer had been in the employ of the defendant more than five years prior to the commencement of this action, but to the surprise of defendant, a couple of days before the first hearing in this «matter he suddenly said to defendant: ‘Mr. Conron, I am going to leave to*739 night,’ and when pressed for his reasons for so doing, and at such short notice, said, ‘Well, I am getting old and my son in Boston wants me to go there to live with him and 1 am going to retire.’ Be did leave and from that day to this has not returned.”
Even if the court could regard this statement as proof it would hardly help the defendant. It seems rather to strengthen the presumption against him. Pfeiffer’s sudden exodus two days before the hearing is open to a most damaging inference, and no reason is sun gested why his testimony was not taken after he went to live with his son at Boston. The presumption arising from the omission to call so important a witness added to the complainant’s testimony presents a case which leaves little room for doubt.
It follows that the complainant is entitled to a decree as prayed for in the bill.