31144. Adulteration of frozen eggs.    U. S. v. 300 Cans of Frozen Eggs.   Decree
entered finding portion of product adulterated and ordering its con- 
demnation and destruction; and finding remainder unadulterated and 
ordering its  release.     Government's motion to amend decree denied.
(F. & D. No. 43044.   Sample No. 29784-D.)
Examination of this product showed the presence of decomposed eggs.
On July 11,1938, the United States attorney for the Eastern District of Penn- 
sylvania filed a libel against 300 cans of frozen eggs at Reading, Pa., alleging 
that the article had been shipped in interstate commerce on or about June*4,
1938, by Armour & Co. from Springfield, Mo.; and charging that it was adulterated 
in that it consisted in whole or in part of a filthy, decomposed, and putrid animal 
substance. The article was labeled in part: "Armour's Star Quality Cloverbloom 
Frozen Eggs."
On August 3, 1938, Armour & Co., claimant, filed a petition praying that the 
Government show eause why the libel should not be dismissed. This petition was 
denied and on November 14, 1938, claimant filed an answer denying that the 
article was adulterated as charged in the libel. On January 16, 1939, the claim- 
ant filed an amended answer to the libel admitting that 7 cans of the product 
contained a filthy, decomposed, and putrid substance, but denying that the remain- 
ing 293 cans contained such filthy, decomposed, and putrid substance.
On January 17, 1939, judgment was entered finding 7 cans adulterated and 
ordering their condemnation and destruction; and finding that the remaining 293 
cans were not adulterated and ordering their delivery to the claimant.
On September 8,1939, the Government's petition to amend the decree was denied 
with the following opinion:
KALODNEE, Judge. "On January 11, 1938, a libel was filed by the United States 
of America, seeking the condemnation and forfeiture of 300 can's of frozen eggs, 
•which were owned by the claimant and had been shipped in interstate commerce. 
Adulteration of the entire 300 cans was alleged in the libel.
"Orders were issued by this court to take samples, and a joint inspection was 
made of every one of the 300 cans by the Government's inspector and a repre- 
sentative of the claimant. The Government inspector found that only 7 of the 
300 cans inspected were objectionable and that the 293 remaining cans were pure.
"Thereafter the claimant's amended answer to the libel admitted that the 7 
cans were impure and denied (in consonance with the findings of the Govern- 
ment inspector) that the remaining 293 cans were impure.
"Subsequently a consent decree was entered by this court on motion of the 
United States of America adjudging the 7 cans to be adulterated and the remain- 
ing 293 cans to be pure. The decree ordered the condemnation and forfeiture of 
the 7 adulterated cans and the return of the 293 pure cans to the claimant.
"Thereafter the United States of America filed a petition to amend the afore- 
mentioned decree, asserting that it did not conform to the pleadings; that since 
the libel averred the entire 300 cans to be adulterated in whole or in part, and 
the claimant's amended answer admitted the shipment to be adulterated in part, 
that the decree should have (1) ordered the condemnation of the entire 300 cans
and. "(2.) Should have ordered the destruction of the 7 cans and the return to the 
claimant of the remaining 293 Kans.
"It is clear and unquestioned that the amended decree if made, would ac- 
complish nothing more or less than the decree sought to be amended; under 
the amended decree the 7 impure- cans would be destroyed and the 293 pure 
cans returned to the claimant exactly as was done under the original decree.
"The admitted facts as to the condition of the 300 cans (7 adulterated and 
293 pure) sustain the original consent decree as it was made. The parties, in 
joining in the decree, gave effect to the law which decrees the condemnation and 
destruction of adulterated food. Any further discussion or action by the court 
would be merely academic and' would serve no useful purpose. No precedent 
is intended to be here established with respect to the questions academic to the 
determination of this matter.
"Accordingly, the petition to amend the decree-is denied."