The San Francisco call., 1905-06-13
MUST BUY PERUNA
IN A LAWFUL WAY
United States Court Opposes
Purchase of Product I'm
der False PretenSeS.

Samuel B. Hartman VS.. William O.
Fenaughty ct al. On application to
compel witness to produce documents
and to answer questions.
Thompson j. (orally).
Samuel 2. Hartman, who is the plain
tiff in 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 under section S63 of the United
States Revised Statutes in that cause,
to answer certain questions and pro-
duce certain documents.
He refused to answer the questions
and to produce the documents upon the
ground that they werenpot material or
relevant to the matter. in controversy
and on further ground, that the an
swers to the questions would disclose
| trade secrets.
have read the testimony SO far as it has
been taken. and have in mind the questions
that were asked. which the witness refused
to answer. Tti
In TIE first place as to the relevancy of the
testimony sought to be ELECTED by these ques-
tions: The case sought to be made in the
plevtn suit is this: That McKessen & Robbins
and Charles II. Loyeland and John D. Park e.
Sons Company, conspiring together for that
Peruna from plaintiff and that the plaintiff
when he discovered the fraud, promptly repudi-
purchase price (which had been paid and re
pievined the goods. In order to maintain the
suit, therefore, It is necessary to show that
the possession of these goods was obtained by
fraud practiced upon the plaintiff, which justi-
fed him in repudiating the contract.
l do not care to discuss the question of the
right to repudate the contract / think there
can be no question about that. McKessen &.
Robbins and Loveland both had contracts with
Hartman TO
and the claim is that in violation of these
contra.ts. they entered into a conspiracy with
John d. Park & Sons Company to obtain Pc
rura from Hartman and ship it to that COM
pany, the company being engaged quite extern
sively in the business of selling Peruna and
having no relation contract with Hartman
which would enable 1t to obtain Peruna in
any other way.
If this be true. undoubtedly Hartman had
right to repudiate the sale and retake the
property. But it is said the contracts with
McKessen & Robbins and Loveland are execu-
tory. and that Hartman look to them
for damages for the wrongful disposition of the
goods. and cannot attack the sale. The charge
however as understand 1t, is that this partic-
ular carload of Peruna was obtained by a fraud
practiced upon Hartman and in furtherance of
the scheme by which John d. Park & Sons
Company sought to obtain Peruna, when they
could not otherwise have obtained it. The
Hartman this: Under our contract we
want to buy this Peruna, put 1t upon the
marke, mari @ and d GEL i as your agents as we
that was Misrepresentation; they did not
want Ii for any such purpose, but wanted it
for the purpose of selling it to John d. Park
Sons Company, in violation of their
tracts with Hartman.
Therefore. IN the opinion of the court, the
testimony sought TO be ELECTED from this wit
ness. Anibro r. Park. is relevant tending
to shcw this fraudulent scheme by which the
Peiuna obtained from Hartman
The witness repeats over and over again
that the answers to the questions put to him
will not .ncrmirate him will not subject
him to penalty forfeiture: but as / have
already stated his sole ground for refusing
to answer is that the questions are irrelevant
to the issues in the case pending in the New
York coIrts and that the answers thereto
would disclose trade secrets. The 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 of John D.
Park Sons Company is fighting Hartman
and the trust organizations. as they are called
which are engaged in this business; that this
firm ia outside and independent; but at the
same time are trying to get these goods by
indirect methods and the trade secret set up
here is that If Park discloses the names of
the men he uses to frauduently obtain goods
from Hartman it will prevent him in the fu-
ture from fraudulently obtaining goods in that
way. We'll that is hardly a trade secret that
should be protected by the courts
The line of examination here. in the opinion
of the court. was legitimate and counsel for
the plaintiff in the has stated to the
to keen within the rule of relevancy and not
to call out or seek to call out from this wit
ness anything that would not be entirely
relevant to the issue in the replevin suit
II 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 able: they know what ~ relevant to the
issue. 1t is simple issue, and they know
what is relevant to the issue, and the
court expects them, of course. to keep within
the rule and not go outside of it to ask inn
pertinent questions which may be annoying
to the witness. but would not contribute any
thing to throw light the matter under in
vestigation. take it there will be no trouble
on that score What this witness knows rel
ative to the transaction Under investigation in
the Federal court at Buffalo should be dis
closed. and any documents or papers in his
possession. which may throw light on It.
should be produced. He should answer the
questions and produce the papers and docu-
mepts. If he has them. and the court will so
order.
Mr. Reed-As to the subpena-do you not
want TO issue formal subpoena?
The .Court-Well, I had forgotten that
am in doubt to whether 1t is necessary. but
1t seems to have been the practice, and I will i
conform to the practice and make an order |
directing the clerk of this court to issue a |
subpoena duces tecum for the books ands dspapers |
called for.
Mr.. Shroder-I do not insist upon the is
suing of the subpoena; I am satisfied with the |
order your Honor.
he Court-Verv we'll. then.