Los Angeles herald., 1905-06-09
IMPoRTANT DECISION
by Hon. A. G. Thompson, United states
Cfrcuit Court

tiff In an action in replevin brought IN tne
United States Circuit Court in the West
ern District of New York against Love-
land and others, has presented an appn-
cation to this court for an order 10 re
quire and compel the witness, Ambro T.
Park, whose deposition Is now being tax
en- before the clerk of this court under sec
tlon S63 of the United States REVISED
Statutes, in that cause, to answer certaln
questions and produce certain documents;
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
ther ground that the answers to the ques-
tions would disclose trade secrets. =.
/ have read the testimony, so far as IL
has been taken, and have in mind the
questions that were asked, which the VIII
ness refused to answer.
In the first place, as to the relevancy
of the testimony sought to be elected py
made in the replevin suit is this: That
McKessen q Robbins and Charles III.
Loveland and John ID. Park & Sons Com
pany, conspiring together for that purss
pose, fraudulently obtained 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
In order to maintain the suit, therefore,
1t is necessary to show that the posses,
practiced upon the plaintiff, which justi-
fled him in repudiating the contract.
| do not care to discuss the question
of the right to repudiate the contract; l
think there can be no question about that.
Nick essen & Robbins and Loveland both
had contracts with Hartman to enable
them to procure Peruna and the claim
is, that I'm violation of these contracts,
they entered into a conspiracy with John
D. Park &c Sons Company to obtain Pc
runa 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 con-
tract with Hartman which would enable
it to obtain Peruna In any other way.
If this be true undoubtedly Hartman
had right to repudlate the sale and re-
take the property But 1t Is said that the
contracts with McKessen &c Robbins and
LoveIand 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, how
ever, as L understand 1t, Is that this par
ticular 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 OBJ
wise have obtained it.. The representation
of NICK essen & Robbins to 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 purpose, but wanted 1t for
the purpose of selling it to John d: Park
& Sons Company, in violation of their con-
tract 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 answers to the questions put tC
him will not incriminate him or Will not
subject him to penalty or forfeiture
| but, as L have already stated, his sole
ground for refusing TO answer is that the
questions are irrelevant to the issues II
the case pending in the New York courts
| and that the answers thereto would dis
close trade secrets. The court is of tho
opinion that the testimony is entirely rele'
want, and that>there are no trade secrets
| disclosed.
The suggestion is that this firm of John
D. Park & Sons Company Is fighting Hart
man and the trust organizations, as they
are called, which are engaged in this bust
ness; that this firm Is outside and inde-
pendent: but at the same time are trying
to get these goods by indirect methods,
and the trade secret set up here is that II
Park discloses the names of 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 trade secret
that should be protected by the courts.
The line of examination here, in the
opinion of the court, was legitimate ana
counsel for the plaintiff in the case has
stated to the court here that 1t is his pur-
pose and intention to keep within the rule
Of relevancy and not to call out or seek
to call out from this witness anything
that would not be entirely relevant to the
issue in the replevin 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 able they know
what is relevant to the issue 1t is sim
pie issue, and they know what is rele-
want to the issue, and the court expects
keen the
and not go outside of 1t to ask impertinent
questions, which may be annoying to the
thing to throw light on the matter under
investigation. | take it there will be
no trouble on that score. What this wit
ness knows relevant to the transaction
Buffalo should be disclosed, and any docu-
ments or papers in his possession, which
may throw light ON it, should be pro-
duced He should answer the questions
and produce the papers and documents, II
he has them. and the court will so order,
Mr. Reed-As to the subpoena-do you
not want us to issue formal subpoena
The Court-Well, l had forgotten that.
| am in doubt as to whether it is neces-
sary, but it seems to have been the prac-
tice, and l will conform to the practice
and make an order directing the clerk of
this court to issue a subpoena duces tee
um for the books and papers called for.
Mr. Shroder-I do not insist upon the is
suing of the subpoena; l am satisfied
with the order. your honor.
The COurt-Very well, then
Mr. Shroder-There is one line of ques-
tioning which would like to have defined
so as to avoid any future controversy, If
possible, and that is those questions that
relate to what John ID. Park & Sons Com
pany did with the goods after they re-
ceived them. l submit that is plainly
irrelevant to the issue and imnlaterial.
The Court-Well, do not see the rele-
Vancy of that.
Mr. Reed-I do not intend to pursue
that your honor, or to ask for any names.
The Court-There Is one feature of the
case that justihes counsel in going fur
ther than he would otherwise be entitled
to go. This is an unwilling witness, and
In a measure might be dealt with as If
upon examinations; but counsel
should keep strictly within the line of
relevancy and not go into the private bus
mess of this firm. which has no reference
to the matter now under investigation.
Mr.. Reed-I do not intend to examine as
to the disposition of the goods at all,
specifically.
The Court-As now advised 1 cannot see
what relevancy It would have to show
what they did with the goods afterwards.
KNIGHTS TO PLAY BALL
WITH ST. VINcENT'S MEN
On the diamond of st. Vincent's col