17352. Alleged adulteration and Misbranding of Bred Spred. U. S. v. 15 
Cases of Bred Spred Raspberry Flavor, et al. Claim and answer 
filed. Hearing on demurrer to answer. Demurrer overruled. 
Judgment for claimant. "Writ of error to Circuit Court of Appeals. 
Judgment for claimant affirmed. (F. & D. No. 21425. I. S. Nos. 
13912-x to 13916-x, incl.    S. No. C-5278.)
On December 2, 1926, the United States attorney for the District of Indiana, 
acting upon a report by the Secretary of Agriculture, filed in the District 
Court of the United States for said district a libel praying seizure and con- 
demnation of 160 cases of Bred Spred at Indianapolis. Ind.. alleging that the 
article had been shipped by Glaser Crandell Co., Chicago, Ill., in part on June 
12, 1926. and in part on September 25, 1926, and had been transported from 
the State of Illinois into the State of Indiana, and charging adulteration and 
misbranding in violation of the food and drugs act.
The libel charged that the article was adulterated in that a substance, pectin, 
had been mixed and packed with the said article so as to reduce, lower, or
injuriously affect its quality and strength in that a substance, pectin, had 
been substituted wholly or in part for the article; and in that it had been 
mixed in a manner whereby inferiority was concealed.
Misbranding was alleged for the reason that the article was an imitation of 
jam; for the further reason that it was offered for sale under the distinctive 
name of another article; for the further reason that the retail packages con- 
taining the article bore labels upon which the statement, " Bred Spred, Rasp- 
berry [Strawberry, Peach or Pineapple, as the case may be]," appeared, which 
statement was false and misleading and deceived and misled the purchaser, in 
that it represented the product to be a pure jam, whereas it was not, but was 
a compound of pectin, fruit, and sugar; and for the further reason that there 
appeared on the said labels pictorial designs or devices of fruit which de- 
ceived and misled the purchaser into the belief that the article was raspberry, 
strawberry, peach, or pineapple-as the case might be-jam, whereas it was 
not. Misbranding was alleged for the further reason that said retail package 
inclosing the product, the metal cap and the manner in which said cap was 
sealed on the package, together with the label bearing statements, designs, and 
devices with respect to the contents of the said package, viz, " Bred Spred, 
Glaser, Crandell Co. 1925 Net Weight 14% ounces, Raspberry [Strawberry, 
Peach or Pineapple, as the case may be] flavor, Glaser Crandell Co. Chicago " 
and the pictorial design of fruit were misleading.
On January 14, 1927, the Glaser Crandell Co., Chicago, Ill., entered an ap- 
pearance as claimant for the property and on February 28, 1927, filed an 
answer to the libel. On December 7, 1927, the claimant filed its amended 
answer setting up (1) the case of United States v. 49% cases Bred Spred, 
N. J. No. 17351, as res judicata in bar of the action, and (2) specific denial 
of each and every charge of adulteration and misbranding contained in the 
libel. A motion by the Government to strike claimant's answer as insufficient 
was overruled on February 14, 1928. On March 16, 1928, the United States 
attorney filed a demurrer to the answer.
The demurrer was overruled June 5, 1928. On November 28, 1928, the 
Government having elected to stand upon the action of the court in over- 
ruling its demurrer, judgment was entered by the District Court in favor 
of the claimant. To this judgment the United States attorney excepted 
and immediately filed petition and notice of appeal and assignment of errors.
On October 25, 1929, the case came up before the Circuit Court of Appeals 
for the Seventh Circuit, J. J. Alschuler, Evans, and Page sitting. The case 
was argued by counsel for the Government and claimant and the court handed 
down the following judgment affirming the judgment of the District Court: 
(Page, Cir. J.)
"The Government (appellant) libeled, in the United States District Court 
for the Southern District of Indiana, under the food and drugs act, a food 
product called ' Bred Spred,' manufactured by claimant (appellee) at Chicago, 
and shipped into Indiana. Appellant abided by its overruled demurrer to 
each of the two paragraphs of appellee's answer, and the libel was dismissed.
"The first paragraph of the answer sets out, as an estoppel by judgment, 
the complete record, other than the evidence, of a case in a Federal District 
Court of Michigan, wherein a judgment, unappealed from, was adverse to the 
Government.
" Concerning the second paragraph of the answer, appellant in its brief, 
makes the admission that it ' consists of specific denials of the various aver- 
ments of the libel and explanations, constituting together a plea of confes- 
sion and avoidance.' It is not a plea of confession and avoidance, but we 
find that it is a good and sufficient answer to the libel, and that as to that 
paragraph the court properly overruled the demurrer and dismissed the 
libel. The propriety of the court's action in that regard is not discussed 
or questioned by appellant. On the contrary, after the above admission, 
appellant abandoned the issue on the second paragraph and said: ' The con. 
tested issues here, then, arise upon the views held and ruling made by the 
Judge of the District Court upon the questions of former adjudication and 
estoppel raised by the first paragraph of amended answer.' That must end 
the case. With a good defense upon the merits admitted, it can not matter 
how many errors may be committed by a trial court on any issue upon 
which a case can not be reversed. If we should hold with the contention 
of the Government on the first paragraph, we could not. for that reason, 
reverse the judgment.    The judgment is affirmed."
ARTHUR M. HYDE, Secretary of Agriculture.