The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1905-06-07
IMPORTANT DECISION
BY Hon. A. C. Thompson, United
States Circuit Court.
From the Cincinnati Enquirer.

From the Cincinnati Enquirer.
| Samuel B. Hartman VS.. William O. Fee
naughty ct al On application To compel
| witness to produce documents and to an
| swer questions.
Thompson, j. (orally).
| Samuel B. Hartman. who is the plain
| tiff in an action in replevin brought in
! the United States circuit court In the
western district of New York against
! Loveland and others. has presented an
| application to this court for an order to
require and compel the witness. Ambro
r. Park. whose deposition is now being
| taken before the clerk of this court, UNI
der section 1853 of. the United States re-
vised statutes. in that cause. to answer
| certain questions and produce certain doe
| uments.
He refused to answer the questions and
| to produce the documents upon the ground
| that they were not material or relevant
| to the matter in controversy, and on fur
| Their ground that the answers to the queS-
tions would disclose trade secrets.
| have read the testimony, so far as 1t
| has been taken, and have in mind the
questions that were asked, which the wit
| ness refused to answer.
| In the first place, as to the relevancy
| of the testimony sought to be elected by
| these questions: The case sought to be
made in the replevin suit is this: That
| McKessen & Robbins and Charles II.
Loveland and John d. Park e. Sons Com
| pany, conspiring together for that pur-
| pose, fraudulently obtained a carload of
| Peruna from plaintiff and that the plain
| tiff, when he discovered the fraud,
| promptly repudiated the contract of sale,
| rendered back the purchase price which
had been paid and replevined the goods.
In order to maintain the suit, therefore,
| 1t is necessary to show that the possess
! sion of these goods was obtained by fraud
practiced upon the plaintiff, which justi-
fled him in repudiating the contract.
| l do not care to discuss the question of
| the right to repudiate the contract; |
| think there can be no question about
| that. McKessen & Robbins and Loveland
| both had contracts with Hartman to en-
| able them to procure Peruna, and the
| claim Is that in violation of these con-
| tracts, they entered into a conspiracy
| with John D. Park & Sons Company to
| obtain Peruna from Hartman and ship
| 1t to that company, the company being
+, engaged quite extensively in the business
| of selling Peruna, and having no relation
| or contract with Hartman which would
| enable 1t to obtain Peruna in any other
way.
If this be true, undoubtedly Hartman
had a right to repudiate the sale and
retake the property. But it is said the
contracts with McKessen & Robbins and
Loyeland are executory, and that Hart
man must look to them for damages
for the wrongful disposition of the goods,
and cannot attack the sale. The charge.
however, as | understand it, Is that this
particular carload of Peruna was obtain
ed by a fraud practiced upon Hartman.
and in furtheranece of the scheme by
which John D. Park & Sons company
sought to obtain Peruna when they could
not otherwise have obtained 1t. The rep
and in furtherance of the scheme by
Hartman was this: Under our contract
we want to buy this Peruna, put 1t upon
the market and sell it as your agents,
as we have been doing heretofore when
in fact that was a misrepresentation
they did not want it for any such pur-
pose but wanted 1t for the purpose of
selling il to John ID. Park & Sons COM
pany, in violation of their contracts with
Hartman.
Therefore in the opinion of the Court
the testimony sought to be elected from
this witness, Ambro R. Park, is relevant
as tending to show this fraudulent scheme
by which the Peruna was obtained from
Hartman.
The witness repeats over and over
again that the ansews to the questions
put to him will not incrimnate him or
will not subject him to a penalty OF lot
fixture; but. as l have already stated
his sole ground for refusing to answer IS
issues in the case pending in the New
York courts, and that the answers there
to would disclose trade secrets. Inc
court is of the opinion that the testimony
is entirely relevant and that there are
no trade secrets disclosed
The suggestion is that this firm Oh Johh
ID. Park q Sons company is fighting Hart
man and the trust organizations, as lney
are called, which are engaged in this pus-
mess: that this firm is outside and inde-
pendent; but at the same time are trying
to get these goods by Indirect metnoos,
and the trade secret set up here is thdl
If Park discloses the names or the men
he uses to fraudulently obtain goods from
Hartman it will prevent him in the future
from fraudulently obtaining goods IN that
way. Well, that is hardly trace secret
that should be protested by the courts.
The line of examination here, In the
opinion of the Court, was legitimate, anu
counsel for the plaintiff in the case nas
stated to the court here that IL Is ms
purpose and intention to keep within TUG
rule of relevancy and not to call out OF
seek to call out from this witness any
thing that would not be entireis ieie'o.
to the issues in the repevin suit.
1t has been suggested that the court
should instruct counsel as to the line
of questions to which the examination
should be confined. The court cannot DO
that. Counsel on both sides are aDie' they
know what is relevant to the issue. IL Is
a simple issue, and they know what is
relevant to the issue, and the court ex-
poets them, of course, to Keep within the
rule and not go outside of it TO ask irn-
pertinent questions which may be an
moving to the witness. but would not con-
tribute anything to throw light on the
matter under investigation. take it there
will be no trouble on that score. What
this witness knows relative to the trans-
action under investigation in the federal
court at Buffalo should be disclosed. and
any documents or papers in his possess
sion. which may throw light on it. should
1nnd e-l,1a IN mar. ha