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lant did not want to commit perjury or admit that they were not genuine. According to appellee, said appellant was bad and mean enough to commit perjury, but did not have courage to do so. But can it be truly said that evidence is lacking that said remedies so analyzed were genuine? We think not. Dr. Krauss testified that he got the bottles from said appellant, and that they were sealed, intact, and bore no evidence of having been tampered with.
Dr. Morrow testified that said appellant took out of a shipment of remedies by appellee certain bottles for analysis, locked them in a desk properly sealed and labeled as they had arrived and afterwards took them therefrom, saying that he was going to deliver them to Dr. Krauss for analysis. It is true that between the time of putting the bottles in the desk and taking them out again, or after taking them out, appellant may have substituted spurious remedies. But there is no evidence that he did, and, in the absence of such evidence, the presumption of fair dealing must be permitted to negative the idea that there was any substitution. The mere fact that said appellant did not testify that there had been no substitution cannot be twisted into evidence that there had been substitution. It is a weakening circumstance, but it can be given no such effect as this. That appellants had genuine Keeley remedies which they might have turned over to Dr. Krauss for analysis is charged in the bill, and part of the relief sought therein was a delivery of them up to appellee on reimbursement being made of the price paid for them.
Then, as to Hargraves' testimony, the only way in which it is met is by the claim that it is unreasonable to believe that he knew the formula by which the Keeley remedies were made. The basis of this claim as to unreasonableness is that Hargraves was neither a physician nor a chemist; that he was the speechmaker and literary man of the concern, and no part of his duties related to compounding remedies; that, if the secret of the formula was known to each of the partners, there would be nothing to prevent either from going into the business on his own account upon the dissolution of the copartnership, and compounding the remedy and treating patients under the Keeley remedies; and that Dr. Keeley was the important man and controlling and dominant factor in the concern. We fail to see anything in any of these circumstances to render Hargraves' knowledge of the formula so unreasonable as to require one to hold his sworn statement that he did know the formula to be untrue. The partnership agreement itself would seem to indicate that he knew it, for it is expressly provided therein that:
"Each member of the firm sball jealously guard all information pertaining to the compounding of said remedies and their constituent parts and ele ments, and shall under no consideration divulge any information whatever concerning their manufacture to any one whatever.”
But Hargraves' testimony is not confined to telling what the formula contained. It tells of tricks resorted to in order to make the public believe that the remedies contained gold, when, in fact, they did not. In the trick played upon Prime and Prof. Marriner, Oughton, president of the appellee since February 21, 1900, when Dr. Keeley died, was the prominent figure. He testified as a witness in the case, yet
he was not asked about nor did he testify in regard to this matter. If such tricks were resorted to, they can be accounted for on no other basis than that the remedies did not contain gold. If they had contained gold, they would not have been resorted to. Criticism of Hargraves' testimony, at various points, has been indulged in. We cannot enlarge this opinion to take them up in detail. We have considered them carefully, and find nothing in them to lead us to discredit his testimony. The most that can be said against his testimony is that he was probably a willing, and, possibly, a revengeful witness.
But this is not all the evidence in support of the position that the Keeley remedies contain no gold. There is a circumstance which, if a consideration of the testimony of Hargraves and Krauss left one in a state of doubt on the subject, is sufficient to drive one to the conclusion that this position is correct. Said Oughton, appellee's president, who has done all the chemical work in preparing the remedies in question, and who knows the formula, was put on the stand by appellants. He was asked in regard to the Keeley treatment as to whether it contained gold, and he refused to answer. An extract from his testimony is in these words:
"Q. 164. Is there any gold in this treatment?
"Q. 166. We notify you then that at the hearing we shall insist that there is no gold in the treatment. Do you still refuse to answer?
"A. I still refuse."
It is hard to account for this refusal upon any other basis than that the remedies do not contain gold. It cannot be accounted for on the ground that the formula is a secret, and it was not to be expected that the secret would be disclosed. But, if there is gold in the remedies, in so far the formula is not a secret. For over a quarter of a century appellee has claimed to the public, and emphasized its claim, that its remedies contain gold. An answer to this question would not open up the rest of the formula or the extent of the gold it contained, for so far the formula was a secret. But as to whether there was any gold at all there was no secret as to that if there was gold there. The silence of appellee's president when asked this question must therefore be construed against it.
This brings us to the other reason, why the lower court refused to give any effect to the position that appellee's business had been built up and was being maintained by fraudulent misrepresentations. It was that, even if this was true, it was not against appellee's right to relief. But, before considering just how this was attempted to be made out, it is to be noted that this court has heretofore held that a court of equity should not protect against injury or invasion a business of selling a medicine which has been built up and is being maintained by fraudulent misrepresentations as to its ingredients, and this on the ground that a suitor in equity should come into court with clean hands. This it did in the case of Fig Syrup Co. v. Stearns, 73 Fed. 812, 20 C. C. A. 22, 33 L. R. A. 56. That was a suit by a manufacturer of a liquid laxative medicine, to which he gave the name “Syrup of Figs” or “Fig Syrup,” to enjoin another from interfering with his business by unfair competition. It was held that it was not entitled to the injunction because it falsely and fraudulently represented to the public that the juice of the fig was the important medicinal agent in the composition of the medicine, when, in fact, just a suspicion of fig juice was put into it not for the purpose of affecting its medicinal character or even its flavor, but merely to give a weak support to the statement that the article sold was syrup of figs, and the laxative agent in it was senna. This was so held notwithstanding there was much evidence introduced showing that it was a very useful medicine and prescribed by physicians of high standing. Judge Taft said:
"This is a fraud upon the public. It is true, it may be a harmless humbug to palm off upon the public as syrup of figs what is syrup of senna, but it is nevertheless of such a character that a court of equity will not encourage it by extending any relief to the person who seeks to protect a business which has grown out of and is dependent upon such deceit."
The case was subsequently approved and followed by the Supreme Court in the case of Worden v. California Fig Syrup Co., 187 U. S. 519, 23 Sup. Ct. 161, 47 L. Ed. 282.
The case we have here comes clearly within the holding in these two cases. The ground upon which the lower court held that the fact that appellee's business may have been built up and grown out of fraudulent misrepresentations to the public was not in the way of its right to the relief it sought was substantially this: A dismissal of the bill for that reason would aid the appellants in practicing the very same fraud upon the public that it is claimed that appellee is practicing, and would therefore put the court in an inconsistent position. The way in which it was thought that such a dismissal would have this effect was that it would amount to an adjudication that the appellant Memphis Keeley Institute had a valid subsisting contract with appellee, and thereby enable it to obtain remedies from appellee to administer to patients. But such a dismissal could not possibly have any such effect. It would not be an adjudication as to the rights of the parties as between themselves. It would be a direct refusal to make any such adjudication. And a court of equity will not aid a plaintiff who comes before it with unclean hands, even though by not doing so it deprives itself of the opportunity to prevent the defendant from doing the unclean thing, and thus may be said to indirectly aid the defendant in so doing. In the Fig Syrup Case the defendant was taking plaintiff's business by unfair competition, and was practicing the very same fraud on the public, because of which the court refused to aid plaintiff, yet the court did not stop him from so doing by granting plaintiff injunctive relief, but turned the plaintiff out of court.
Counsel for appellee cites and relies on a number of cases which hold that a court of equity will not turn out of court an unclean man, or a man who has done an unclean thing which has no relation to the thing which it is sought to have protected by its decree. But such decisions have no application here. The uncleanness here has to do with the very thing which the court is asked to protect and prevent from injury and invasion by appellants. The appellee claims to have the right to administer and to sell for administration, in the state of Tennessee, its Keeley remedies, and that appellants are injuring that right and invading its business by asserting that it has the right to and is in fact administering such remedies at the Memphis Institute, and asks the court to protect its right and business from such injury and invasion by enjoining appellants from so claiming, canceling the contracts, and requiring a delivery up of the remedies held by appellant. But that business—the very thing which the court is asked to protect—is, as we have held, unclean in the particular stated. Hence it is a clear case within the rule that a court of equity will not aid one who comes before it with unclean hands.
It should be noted, however, though it is not relied on either by the lower court or by appellee's counsel here, that the fact in regard to appellee's fraudulent misrepresentations, as we have adjudged it, was not set up by appellants in their answer as a defense to the suit. This presents the question whether, in the absence of its having been so presented, any effect can be given to it. It seems to be well settled that such a matter need not be pleaded as a defense to the suit. If it appears from the record, it will be given effect notwithstanding it has not been pleaded. The theory upon which this is done is that in reality it is not a matter of defense. It is given effect to, not on defendant's account, but because of the public. As said by the Supreme Court of Tennessee in the case of Simmons Med. Co. v. Drug Co., 93 Tenn. 99, 23 S. W. 169:
"It is not strictly speaking a defense at all, but rather an interposition by the court to discourage fraud and wrong upon the public.”
The following decisions lend support to and uphold this doctrine: Fetridge v. Wells, 13 How. Prac. (N. Y.) 385; Cardoze v. Swift, 113 Mass. 250; Dunham v. Presby, 120 Mass. 285; Connell v. Reed, 128 Mass. 477, 35 Am. Rep. 397; Teoli v. Nordrill, 23 R. I. 87, 49 Atl. 489; Mass. Nat. Bank v. Shine, 163 N. Y. 360, 57 N. E. 611.
In view of the holding that we have made as to this matter, it is not necessary that we consider any other question raised and discussed on the appeal.
We feel constrained, therefore, to adjudge that the decree of the lower court be reversed, and the cause remanded thereto, with directions to dismiss the bill.
(156 Fed. 97.)
UNITED STATES v. CHARLES H. WYMAN & CO.
Nos. 1,798, 2,580.
Customs Administrative Act June 10, 1890, C. 407, 8 14, 26 Stat. 137 (U. S. Comp. St. 1901, p. 1933], permitting protests against decisions of collectors of customs to be filed “within ten days after but not before" liquidation of the entries, fixes definitely the time within which a protest must be filed; and, if not filed within this period, a protest is invalid.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs Duties,
8 198.] 2. SAME_EXTENSION OF TIME-CUSTOMHOUSE ERROR.
By a customhouse error the date of liquidation was stated in an entry as being later than it was in fact, and a representative of the importer was thereby misled; but the correct date was given in both a notice sent to the importer and the liquidation bulletin posted for inspection by importers. Held, that the error did not have the effect of extending the period for filing protests, prescribed by Customs Administrative Act June 10, 1890, c. 407, § 14, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933).
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Customs Duties,
§ 198.) 3. SAME-LIQUIDATION-DISCREPANCY IN DATE.
For the purpose of ascertaining the date for filing protests, importers are bound to take notice of the dates given in the liquidation bulietin publicly posted as prescribed by the customs regulations; and, in case of conflict between the bulletin and notations on the entry, they should be gore erned by the former.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Customs Duties, § 198.]
Appeal from the Circuit Court of the United States for the Eastern District of Missouri.
Edward P. Johnson, Asst. U. S. Atty. (IHenry W. Blodgett, U. S. Atty., on the brief), for the United States.
Clinton Rowell and Joseph H. Zumbalen, for importers.
Before VAN DEVANTER and ADAMS, Circuit Judges, and RINER, District Judge.
RINER, District Judge. This is an appeal from an order of the Circuit Court for the Eastern district of Missouri, reversing the action of the Board of United States General Appraisers in overruling the protest of Charles H. Wyman & Co., a corporation, importer, and further ordering that the surveyor of customs at the port of St. Louis reliquidate the entry in controversy according to certain findings made by the court.
It appears from the record that Wyman & Co. imported on the steamer Wilhelm der Grosse from B men two cases, numbered 521 and 525, containing millinery, buckles, and ornaments valued at $135. The importation was entered on the 3d day of July, 1900, at the port of St. Louis as No. 17. The duty thereon was fixed at 60 per cent. ad valorem, under paragraph 134 of the tariff act of 1897. Act July 24, 1897, 30 Stat. 151, c. 11 [U. S. Comp. St. 1901, p. 1676]. The en