26103. Alleged Misbranding of salad oil. XJ. S. v. 20 Cases of Salad Oil. Excep- 
tions filed by intervenor; exceptions dismissed. Tried to the court. 
Libel dismissed.     (F. & D. no. 34423.    Sample no. 24002-B.)
This product consisted principally of cottonseed oil and was sold as salad oil.
On November 19, 1934, the United States attorney for the Eastern District 
of Pennsylvania, acting upon a report by the Secretary of Agriculture, filed in 
the district court a libel praying seizure and condemnation of 20 cases of salad 
oil at Easton, Pa., alleging that the article had been shipped in interstate com- 
merce on or about June 6, 1934, by the Agash Refining Corporation, from Brook- 
lyn, N. Y., and charging misbranding in violation of the Food and Drugs Act. 
The article was labeled in part: "Italian Cook Oil."
The article was alleged to be misbranded in that certain statements appear- 
ing in the labeling, together with the use of the Italian national colors thereon, 
were misleading and tended to deceive and mislead the purchaser, since they 
created the impression that the product was Italian olive oil, whereas it was 
not; in that the statement on the label "Pure Vegetable Salad Oil" was mis-
leading and tended to deceive and mislead the purchaser, since the term is also 
applicable to olive oil; and in that it purported to be a foreign product when 
not so.
On  January  11,  1935,  the  Agash  Refining  Corporation,  which  had  been
granted leave to intervene, filed exceptions to the sufficiency of the libel, and
on January 15, 1935, the Government moved to strike the exceptions.   On June
2, 1936, the intervenor's exceptions were dismissed with the following opinion:
_JQicgXN8iHT. JudfffiJLeave was granted to file Briefs.   That of the claimant
/
'was delayed because of the illness of counsel.   It has now been received.
There is little danger of anyone suffering from dizziness because of the 
rapidity of movement in this case. The libel was filed November 19th, 1934. 
The exceptions in question were filed January 11th, 1935. The motion before 
us to strike off was made January 15th, 1936. The argument was held March 
24th, 1936, and counsel were unable to submit final Briefs until May 29th, 1936. 
Admiralty is made the procedural guide in these libel condemnation cases.
The exceptions filed are intended to serve the purposes of a demurrer and to 
raise the question of whether the libel discloses a cause of action. The Ad- 
miralty Rule authorizing exceptions is Rule 27. This allows an exception to be 
filed to the "sufficiency" of any pleading, and hence the libel. Our own Rules 
are 24 and 36. Admiralty Rule 21 requires "notice to all persons concerned 
in interest" to appear, etc.
The exceptions are four. One of them raises the question of the sufficiency 
of the libel to disclose a cause of action. The motion to strike off is based 
upon the averment that the exceptant has no ownership in the seized salad oil.
We have been favored with elaborate arguments upon the right of the ex- 
ceptant to intervene. Inasmuch, however, as no judgment of forfeiture can be 
entered unless the libel discloses a cause of action, this question confruits the 
libellant.
The main objective of the Food and Drugs Act is to save the purchasing 
public from being deceived. It is the merit and defect of the English language 
that except in its technical terms the meaning of its words must be gathered 
as much from their setting as from the words employed. The word "deceive" is 
an illustration. It is like and indeed included in the word "fraud." Every 
hearer or reader attaches to it a meaning and yet it is a word which defies 
definition. The division of facts into evidentiary and ultimate is useful here. 
The fact that a label bears certain words and marks is an evidentiary fact. 
What meaning would be conveyed to the mind of the reader is an ultimate fact. 
It may be said to be a conclusion, and so it is, in that an ultimate fact is an 
Inference drawn from evidentiary facts. It is none the less a fact inference. 
We have, for illustration, the averment that the label here in question displays 
the word "Italian." This is an evidentiary fact. The ultimate fact averred is 
that from seeing the word "Italian", the reader would infer that the article 
encased in the can which bore the label came from Italy. So he might, but if 
along with the word "Italian", he saw the words "made in America", he might 
not. So with the words "Pure Vegetable Salad Oil." The evidentiary fact is 
averred that the label contains these words. The ultimate fact is further 
averred that this would be read as meaning that the product was olive oil. 
The point made is that the ultimate fact averment is an averred fact, not a 
conclusion which the Court may draw.
The exceptions are dismissed, with leave to the intervening claimant to 
answer over. 
~~~~Off'August 19, 1936, the case having come on for trial before the court, the 
pleadings, and a stipulation of facts, the court handed down the following 
opinion:
_lDj[CKiKBOK^jtttd££jThis cause was heard as upon final hearing. Exceptions 
r were filed to the libel, and a motion made to strike or dismiss the exceptions. 
This motion was disposed of upon the well established distinction between 
evidentiary facts and ultimate fact findings made therefrom. The evidentiary 
facts are not in dispute. These facts are averred in the libel, and the further 
ultimate facts are averred that the label in use by the intervening respondent 
is misleading in that the salad oil referred to in the label is thereby averred to 
be an olive oil and to be produced in Italy; whereas in fact the oil is not olive 
oil and is the product of domestic manufacture. The label is because of this 
asked to be condemned as misleading and in violation of the provisions of the 
Food and Drugs Act.
Viewing the ultimate fact averments to be averments of fact and not merely 
an interpretation of the meaning of the language of the label, we held that the
-question should be disposed of as a question of fact.    The parties thereupon by 
stipulation duly filed, waived the right to a trial by jury and submitted the case 
to the Court sitting without a jury.   We accordingly thus dispose of it. 
Ilndinjg£_ojC_Fjict1 1. The evidentiary facts are found in accordance with the 
* stipuJiHonentere3'into by the parties.
2. The ultimate fact finding is made in favor of the respondent that the salad 
oil in question is not represented by the label to be an olive oil nor is it repre- 
sented to have been made in the Kingdom of Italy. 
Discussion.   Judge Forman, of the New Jersey District, in the kindred case 
ofthe United States against cases of salad oil has so well and so satisfactorily 
discussed the merits of this cause that we deem further discussion unnecessary. 
We accordingly limit ourselves to a statement of the conclusions of law reached. 

Cjmclusionsjof Mass.   1. The label set forth and complained of in the libel Is 
-not in violation of the provisions of the Food and Drugs Act. 
2. The libel should be dismissed. 
^  
Normal order dismissing the libel may be submitted.
5n August 27, 1936, judgment was entered dismissing the libel and ordering 
the return of the product to the intervener.
"W. R. GBEGO, Acting Secretary of Agriculture,