23886. Adulteration of canned salmon. TJ. S. v. F. A. Gosse Co. and 
Fisheries Faclcingr Corporation. Flea of grnllty by Fishermen's 
Packing; Corporation. Fine, $75. Special plea In bar interposed 
by defendant F. A. Gosse Co. Plea in bar sustained and action 
dismissed as to F. A. Gosse Co. (F. & D. no. 32215. Sample no. 
39608-A.)
This case was based on an interstate shipment of canned salmon, samples 
of which were found to be decomposed.
On September 4, 1934, the United States attorney for the Western District 
of Washington, acting upon a report by the Secretary of Agriculture, filed in 
the district court an information against the F, A. Gosse Co., a corporation, 
Seattle, Wash., and the Fishermen's Packing Corporation, Seattle, Wash., 
alleging shipment by said defendants in violation of the Food and Drugs Act, 
on or about July 3, 1933, from the State of Washington into the State of 
Massachusetts of a quantity of canned salmon that was adulterated. The 
article was labeled in part: (Can) "Red Breast Salmon * * * Distributed 
by F. A. Gosse Company, Seattle, Wash."
The article was alleged to be adulterated in that it consisted In part of a 
decomposed and putrid animal substance.
On October 10, 1934, the Fishermen's Packing Corporation entered a plea
of guilty and was fined $75.   A special plea in bar was interposed by the
F. A. Gosse Co., setting up that it had a valid guaranty from the Fishermen's
Packing Corporation and praying dismissal of the action in so far as it con
cerned said defendant.   The Government having filed an answer to the plea
in bar, the issues were tried to the court on November 13, 1934, which, after
hearing the evidence and argument of counsel, handed down the following
opinion dismissing the case as to the F. A. Gosse Co.:  (Bowen D. J.)
lillThe court is ready to rule on this now.   If I were sitting on a jury with
/the evidence that is before tills court I would not convict this defendant by
/ reason of the peculiar facts in this particular case.   The case, In my- mind,
[ whatever the ruling on the plea in bar might be, could not have any effect
•^s_ a. precedent anyway, by reason of the peculiar circumstances in this case.
""I think the two parties in this action were both jointly acting as principals 
in this matter. In the first place, Gosse & Company went to the manufacturer 
or packer of these goods and told him that he had an order and wanted to 
know if he desired to fill it, and, according to the evidence in the file, asked 
to see some samples of stock that he wished delivered, and he was shown some 
samples of stock that met the grade that this particular sales agent had to have 
to meet the requirements of his trade; and after that was done, arrangements 
were made to use the labels of the distributor, F. A. Gosse Company, on this 
article, and they were used and put on the goods in that way.
" One of them was as much a principal as the other, and this pack may be 
said to have been furnished to the trade for the account of this broker or 
sales agent, F. A. Gosse Company.
" There Is some doubt in my mind as to whether there were all the elements 
of a sale—quite a lot of doubt—as regards the transaction between the Fisher- 
men's Packing Corporation and F. A. Gosse Company, but it was more nearly 
in the nature of a sales transaction than anything I can find it to be, and 
I believe that there is a positive and sufficient showing of good faith on the 
part of F. A. Gosse Company in this particular transaction, and that no jury 
would convict the corporation on the evidence; and I hold, as a matter of 
law on this plea in bar that the plea must be sustained, and the action will 
have to be dismissed, so far as this defendant F. A. Gosse Company is con- 
cerned, and the reason I believe the court arrived at this conclusion is because 
of this relationship of distributor for the packer which arose in this particulai 
transaction."
M. L. WILSON, Acting Secretary of Agriculture,