Record and brief — Rachel S. Gaff, Joseph F. Gent, and Richard Thomas, Plaintiffs in Error, vs. Henry Kiefer

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SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 18553.

No. 337.

RACHEL 8S. GAFF, JOSEPH Fk. GENT, AND RICHARD

THOMAS, PLAINTIFFS IN ERROR, |

US.

HENRY KIEFER.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF NEW YORK.

FILED SEPTEMBER 13, 1886.

SC METERS BAO tm be tae ee i hg RET etn —— ”

Cian 2 alk a aw Mette. AT

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 138s.

No. 337.

RACHEL .S. GAFF,. JOSEPH F. GENT, AND RICHARD

THOMAS, PLAINTIFFS 5 IN ER ROR,

US.

HENRY KIEFER.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR

THE EASTERN DISTRICT OF NEW YORK.

Original.

mransetiet from Gite GOUlha. . 6 one ncn cone cee ae reeae nemo I

a ae ae ate als ]

I i ica chin ne ki ices a hig alin as clk ale eieitn iced ”

Notice of appearance and dem: al Baar ee CMe EEE. ARNE SAE 5

Answer __---.-. a BEC MPa oo }

Amended complied oR SESE eas a acs sis sac sseaaaiobiad i eae Q

Sehedule A—List of customers.___.....-..--- pa . 13

te BO TI ioe we So a Shs ny sn el bin we nce 15

i Te i ia inci illiniid hiciekanahaiie sama a ao-sie 18

Apennines Tet GON on 5 5+ 3 oc oo ons os Le cl wences see se on 21

I a es ans lak sigan an pal ole cake 21

Order for vabetliusien of attorney Se 22

Consent for substitution of attorney a aM 23

TERRE nies mann si isabel useable as ds akc TS MUR LOIRE PE Fane ae TE Sor 24

aa i ceeded sen a Na aR a ec Saal is es sdgieesinedh taiineid add ead Ne a mS ie 26

Motion to set aside vaciliek i la i a ia pi ae 27

Notice of motion to set aside verdict —.--- Sry a eto 8s ec 22

Affidavits in support of motion to set aside ve eiliek . nip sic dalacdeadicanas tees cad 29

ee I TN bites ices a seid ote cr des Wt nin sibel mina 29

aes 30

I CI in in: scsi mn ont toon «cee ew carina 31

Order denying motion to set aside verdict, &c. -..------------------- 33

Jupp & DetTweHILER, PRINTERS, WASHINGTON, NOVEMBER 23, 1888.

Print,

a Gace Sd oe

II

Order reviving cause and directing judgment agninst surviving de-

fenduants .__-

Order denying motion for new trial and vacating stay. _—--

Order allowing time to file bill of exceptions —_- ie

Judgment —. —- “ '

Bill of exceptions

Evidence for plaintiff

Testimony of Henry Kiefer .

Defendants’ motion to dismiss denied

Frederick Licht

James Keim : ——

Conrad Ament ; A on

Archibald Seott ian

Krederick

Kdward -. Licht- a i a ac

Sana Ti aati eo

Licht (recalled)...

Bonn Veet 2. ati aa pee eal

Thomas Fitzpatrick ...-... alae sa tia ;

Henry Kalp Perse PRON Mae gee So ea

Evidence for defendants _____-

Testimony of Richard Thomas SOT eT i

John D. Green . pai ates ea EL ae

oe ng AEE a ER Rage Aa eam

Exhibit No. 1.—Letter of Dr. R. Ogden Doremus to Gaff,

eet ana Zeomas, March 20. 1662 ...................

,eauumony OF ir. B. Oden Doremis .... -. ...............

NN IN ca nk ch cacguls uae ad icra on oh anna

Max Schwarz _____- ERS :

I es a ae

Henry Kiefer _____. a aa

Ira Edward Thurber-__-_- iacack ie oie wwe is

Anton Schwartz (recalled) ..........__.- .

George Goldman - ip cn asa Taos as saelbe ehaiios sobdihaliods

Henry Kiefer (recalled) ares Licccalleianis

Win. R. Pitcher a a

oon 6. Peer (reuaiied)..

Henry Kiefer ( recalled) -_. - a a a eee -

John D. Green (recalled ) sh eis aeadone'e - a

ae, o; BeeeOn.. ow. ee ee ce Nay eNO A BOE

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I sik sales tac

Richard Thomas (rect lled) —— ai inn i alle dans 7

Wim. J. Hudson (recalled) -___-__- ide

renee er SOUT O00 PONTOON oi enn met cnnmneacwe

‘Testimony of Car] A. Holstein vn iat ike sii nl cea si ek ck sa lsh seb i Sek eld ks db alse

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Charge tu jury

Carl A. Holstein (recalled)

Conrad Ament a a a

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Original.

Print.

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INDEX.

Defendant's requests and exceptions

Chote Tr Wi IE. 6. eis, BK eis ee

Copy of writ of error ..........- ‘ Ma Sophy Cae

eOtsOe OF RINE oasis Kewens ae ee eds

Certificate to bill of exceptions alpha 1 clades eras tidal

Consent to bill of exceptions --—-- ‘ a aes ene FEE

Notice of appeal. -_--.--- i MPRA Mele SONNE EN pa SPOS TENN SPEC

Bond. ..... Ree Se wets seek" ad a sansa 2G ans Alans i Lah laa al ins ache esa

Clerk’s certificate... -__- oe oaks ig! ole inca Seb Cx oul eae ele to ae

Writ of error ___ POPS Nae ica use tisk Winedaakde teense eg

Renee os ARASH eNO aa ia ; se baum

Proof of service of citation ih i i ee Ee

BOINGGS T0 COO0P 5 kk occ cae os adk a aaron

—— oe

-—— — _-_—

- —_—— o

Original.

165

166

168

170

171

Iift

Print.

104

105

106

106

107

107

107

108

109

109

110

111

111

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. . 1

1 New York Supreme Court.

Henry KIerer, Plaintiff,

against

Tuomas Garr, R.S. Garr, Josepy IF. Gent, and RicHarp THOMAS,

Composing the Firm of Gaff, Gent & Thomas, Defendants.

To the above-named defendants :

You are hereby summoned to answer the complaint in this action

and to serve a copy of your answer on the plaintiff's attorney within

twenty davs after the service of this summons, exclusive of the day

of service, and in case of your failure to appear or answer judgment

will be taken against you by default for the relief demanded in the

complaint. |

Dated Brooklyn, a 6th, 1883.

| M. L. TOWNS,

Plaintiff’s Attorney.

Office and post-office address, No 16 Court street (rooms 39 to 42),

Brooklyn, N. Y.

2 New York Supreme Court, Kings County.

HenNrRY KIEFER

against :

THomas GAFF, R. 8S. GArr, JoserH I. Gent, and RicHarp THOMAs,

Composing the Firm of Gaff, Gent & Thomas.

The complaint of the plaintiff respectfully shows—

First. That defendants are copartners doing business under the

firm name of Gaff, Gent & Thomas, and carry on the manufacture

and sale of corn, flour, meat, and cerealine.

Second. That plaintiff is a brewer carrying on the business of

manufacturing and selling lager beer in the city of Brooklyn.

Third. That in the manufacture of said beer it is customary to

use ceredline, and plaintiff has used the cerealine manufactured by

defendants, which is manufactured from coru.

Fourth. That on or about the 30th day of January, 1883, plaintiff

purchased from the defendants sixty bags (to wit, 5,400 pounds) of

said cerealine, which plaintiff, to the knowledge of defendants,

purchased to be used in .and about the manufacture of lager

- beer.

3 Fifth. That the said cerealine was, to the knowledge of the

defendants, entirely unfit to be used in the manufacture of

lager beer, in that it was manufactured from datnaged corn, and the

use thereof in the manufacture of lager beer would destroy the value

thereof and render the same deleterious and unsalable.

Sixth. That the defendants, though wellaware of that factand know-

ing that said cerealine would not only be of no value to the plaintiff

1—337

2 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

but would cause him great damage through the eanatecbass and sale

of an inferior quality of beer, not only fraudulently and deceitfully

withheld the knowledge thereof from the plaintiff, but sold the same

for the full value of a good quality of cerealine and represented

and stated the same to be a first-class article and equal to any that

defendants had previously sold and in a fit condition for brewers’

use; which representations were false and fraudulent, and the mak-

ing ‘thereof and the withholding of the knowledge as to the true

character of said cerealine was with the intent to cheat and defraud

the plaintiff in the sale of an inferior article for the price and value

of a good article of cerealine.

. Seventh. That plaintiff, believing that the said cerealine

4 was a good article, equal to that previously used by him, and

fit for brewers’ use, purchased the same as aforesaid and used

it in the manufacture of lager beer.

Eighth. That by reason of the premises the beer manufactured by

plaintiff in which said cerealine purchased from the defendants was

used became damaged, unmerchantable, and ruined, whereby plain-

tiff lost his trade, was abandoned by his customers, some of whom

are named in Schedule A, hereto annexed, which forms a part of

this complaint, who refused to trade with plaintiff on account of the

beer manufactured in which said cerealine was used being ruined

by said damaged cerealine, plaintiff’s business was impaired and

ruined, and the property of the plaintiff has been injured and his

-estate lessened in the sum of thirty thousand dollars by reason of

the premises.

Wherefore plaintiff demands judgment against defendants in the

sum of thirty thousand dollars, besides the costs of this action.

M. L. TOWNS,

PUFf’s Att’y.

Office and P. O. address, 16 Court street, Brooklyn, N. Y.

5 City oF BROOKLYN, =

County of Kings,

Henry Kiefer, being duly sworn, says that he is the plaintiff in

the above-entitled action ; that he has read the foregoing complaint

and knows the contents thereof, and that thesame is true of bis own

knowledge, except as to the matters therein stated to be alleged on

information and belief, and that as to those matters he believes it to

be true.

HENRY KIEFER.

Sworn to before me this 6th day of August, 1883.

JAS. J. HUGHES, —

Comm’s. of Deeds, City of Brooklyn.

(Endorsed.:) Summons and complaint. Affidavit. M. L. Towns,

attorney for pl’ff.

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 3

Notice of Appearance and Demand.

Supreme Court, Kings Co.

Henry KIeFeER against THomas GaFF et al.

6 Please to.take notice I am retained by and appear for all

the defendants in this action, and demand that a copy of the

complaint and all papers therein be served on me at my office, No

154 Nassau street, N. Y. city.

Yours, «c., CHAS. S. SPENCER,

Attorney for Defendants.

Office address, 154 Nassau street; post-office address, Tribune

building, N. Y. city.

To M. L. Towns, Esq., attorney for plaintiff.

Supreme Court of New York, Kings County.

Henry KIEFER

ag’st

THOMAS Garr, R. 8. GAFF, JosepH F. Gent, and Richarp Tuomas,

Jom prising the Firm of Gaff, Gent & Thomas.

The defendants above named, answering the plaintiff’s complaint,

respectfully show:

First. They admit the allegations contained in the first and second

sections or subdivisions of said complaint.

7 Second. They admit the allegations contained in the fourth

subdivision of said complaint, except they have no knowledge

or information as to the purposes for which the plaintiff bought the

said cerealine therein alleged to have been bought by the defend-

ants.

Third. The defendants deny each and every allegation contained

in paragraphs or subdivisions fifth, sixth, and ninth of said com-

plaint.

Fourth. The defendants have no knowledge. or information suffi-

cient to enable them to form a belief as to the allegations contained

in section or paragraph seven of said complaint.

Fifth. The defendants deny each and every allegation in said

complaint contained not hereinbefore admitted, denied, or otherwise

qualified or explained.

Sixth. The defendants, furiher answering said complaint, allege

that the damage to said plaintiff's lager beer, if any, was occasioned

wholly and solely by the negligence and carelessness of the plaintiff

and his agents, and wes not occasioned by any act of the defendants,

as alleged in plaintiff’s complaint.

Wherefore the defendants demand jndpenend that the complaint

of the plaintiff be dismissed with costs.

ee CHAS. S. SPENCER,

Defendants’ Attorney, 154 Nassau Street,

Tribune Building, New York.

4 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

City AND County or New YOrK, 88:

Oscar O. Bennett, being duly sworn, deposes and says that he is

the general agent of the business of the defendants in the city of

New York, resident at the city of New York, and therefore familiar

with the matters involved in this action, and that he knows the

contents of the foregoing answer and that the same is true of his

own knowledge, except as to those matters therein stated to be

alleged on information and belief, and as to those matters he be-

lieves it to be true.

OSCAR OLIN BENNETT.

Sworn to before me 5th dav of November, 1885.

JOHN HAHNENFELD,

Notary Public, New York County.

9 New York Supreme Court, Kings County.

“Henry KIEFER

; 7 against

Tuomas GAFF, R. S. Garr, JoserH F. Gent, and RicHarp THoMAs,

Composing the Firm of Gaff, Gent & Thomas. ‘

The amended complaint of the plaintiff respectfully shows—

First. That the defendants are copartners doing business under

the firm name of Gaff, Gent’ & Thomas, and carry on the manu-

facture:and sale of corn, flour, and cerealine.

Second. The plaintiff is a brewer carrying on the business of

manufacturing and selling lager beer in the city of Brooklyn.

Third. That in the manufacture of said lager beer it is customary

to use cerealine, and plaintiff has used the cerealine manufactured

by defendants, which is manufactured from corn.

Fourth. That from on or — April 4th, 1883, up to and

10 including July 38, 1883, at divers times the plaintiff purchased

from the defendants a large quantity of cerealine, which the

plaintiff, to the knowledge of the defendants, purchased to be used

in and about the manufacture of lager beer.

Fifth. That the greater part of said cerealine was, to the knowledge

of the defendants, entirely unfit to be used in the manufacture of

lager beer, in that it was manufactured from damaged corn, and the

use thereof in the manufacture of lager beer would destroy the value

thereof and render the same deieterious and unsalable.

Sixth. That the defendants, though well aware of that fact and

knowing that said cerealine would not only be of no value to the

plaintiff but would cause him great damage through the manufact-

ure and sale of an inferior quality of beer, not only fraudulently

and deceitfully withheld the knowledge thereof from the plaintiff,

but sold the same for the full value of good quality of cerealine and

represented and stated the same to be a first-class article and equal

to any that defendants had previously sold and in a fit condition for

brewers’ use; which representations were false and fraudulent, in

RACHEI 8S. GAFF ET AL. VS. HENRY KIEFER. . o

the making thereof and the withholding of the knowledge as

11 to the true character of said cerealine was with intent to cheat

and defraud the plaintiff in the sale of an inferior article for

the price and value of a good article of cerealine.

Seventh. This plaintiff, believing that the said cerealine was a good

article; equal to that previously used by him and fit for brewers’ use,

purchased the same as aforesaid and used it in the manufacture of

lager beer.

Eighth. That the piaintiff paid said defendants for the greater

portion of said damaged cerealine upon said representation the sum

of two thousand and fifty-nine seventy one-hundredths dollars, to

which amount plaintiff is especially damaged.

Ninth. That by reason of the premises the beer manufactured by

the plaintiff in which said cerealine purchased of the defendants

was used became damaged and unmerchantable and ruined, whereby

plaintiff lost his trade, was abandoned by his customers, some of

whom are named in Schedule A, hereto annexed, which forms a part

of this complaint, who refuse to trade with plaintiff on account of

the beer manufactured in which said cerealine was used being

ruined by said damaged cerealine, plaintiff’s business was im-

12 paired and injured, and the property of the plaintiff has been

injured and his estate lessened in the sum of thirty thousand

dollars by reason of the premises.

Wherefore the plaintiff demauds judgment against the defendant

in the sum of thirty-two thousand dollars, besides the costs of this

action.

M. L. TOWNS,

Plaintiff's Attorney.

Office and post-office address, No. 16 Court street, Brooklyn.

Ciry oF Brookiyn, |.

3 County of Kings, ag

Henry Kiefer, being duly sworn, says that be has read the fore-

going amended complaint and knows the contents thereof,and that

the same is true of his own knowledge, except as to those matters

therein stated to be alleged on information and belief, and as to those

matters he believes it to be true. |

HENRY KIEFER.

Sworn to before me this 17th day of October, 1883.

JAS. J. HUGHES,

Com’r of Deeds, City of Brooklyn.

13. #Scuepure A. Referred to in Foregoing Complaint.

Peter Becker, Flushing & Throop avenue, Brooklyn, E. D.

James F. Mooney, 15th Str. & Fifth avenue, South Brooklyn.

Jacob Bouhag, 27 Columbia street, New York.

Aug. Spennecke, 4 Bleeker street, do.

RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

Georg. Romig, 171 Essex street, New York.

C. H. Fallet, 141 E. 8th street, do.

L. Weil, 269 E. Houston street, do.

H. W. Brummer, 237 E. 26th street, do.

A. Cotteler, 185 Rivington street, do.

M. Weickert, 475 E. Houston street, — do.

J. J. Czessull, 620 E. 17th street, do.

Louis Muller, 204 E. 7th street, do. .

Jos. Sternkopt, 34 Varet street, Brooklyn, E. D.

Wm. Droll, 251 Marcy avenue, do.

Chas. Bernhard, 64 Smith Str., do.

Emil Keller, 356 Broome street, New York.

A. Wolf, 187 Avenue B, do.

L. Krause, 602 Grand street, do.

Ray 3 Seeger, 124 Attorney street, do.

Leo. Kemmerer, 914 FE. 4th Str., do.

Ad. Bergar, 205 Scholes street, Brooklyn, E. D.

14 Jos. Ald, 251 Rockaway avenue, Brownsville.

Fr. Denig, 438 North 2nd Str., Brooklyn, E. D.

H. Wittich, 276 Franklin street,

Frank Bahlbender, 467 Grand street, Brooklyn, c. 2.

15 New York Supreme Court, Kings County.

“Henry KIEFER

against

Tuomas GAFF, R.S. Garr, Josepn F. GENT, and Ricuarp THOMAS.

To the supreme court of New Y ork :

The petition of Richard Thomas respectfully shows to the court—

I. That an action has been brought in this court against your pe-

titioner, Richard Thomas, together with the other defendants in this

action above named bv the above-named plaintiff.

II. That this said action is brought by said plaintiff to recover

thirty-two thousand dollars for an alleged damage which said plain-

tiff claims to have sustained because of an alleged sale to said

plaintiff of certain damaged and unsound cerealine to be used by

plaintiff in the manufacture of 1: ager beer, which said cerealine plain-

tiff alleges defendants falsely and fraudulently represented to

16 be sound and of good quality.

III. That the plaintiff is a resident of this State,and your

petitioner and all the codefendants herein are non-residents of this

State and reside, respectfully, as follows:

Thomas Gaff, at Aurora, Indiana; R. S. Gaff at Cincinnati, Ohio;

Joseph F. Gent, at Columbus, Indiana: Richard Thomas, at Colum-

bus, Indiana, of which said places the defendants are, of your peti-

tioner’s own knowledge, actual residents and citizens.

IV. That the matter in dispute exceeds the sum of five hundred

dollars, exclusive of costs, as appears by the summons and com-

plaint.

sea

‘

RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

V. That your petitioner now does, as well for himself as for the

other defendants herein, enter their appearance in this action, no ap-

pearance having been entered heretofore.

VI. That he hereby offers good and sufficient security for his en-

tering in the next circuit court of the eastern district of New York,

on the first day of its session, copies of the process against said

defendants in this action, and also for their then appearing and en-

tering special bail in this action, if special bail were originally

requisite therein, according to the law and _ practice of

17 the United States and its courts. |

Your petitioner therefore asks that the said cause may be re-

moved for trial into the next circuit court to be held in the district

where the same is pending, to wit, into the next circuit court for the

eastern district of New York, pursuant to the provisions of the said

statutes of the United States in such cases made and provided, and

that this court do accept the securities offered by vour petitioner as

aforesaid, and do proceed no further in said cause, and for such

other order or relief as in the premises may to the court seem equi-

table and just. 3

Dated N. Y., March 19, 1884.

? RICHARD THOMAS, Petitioner.

City AND County oF NEw YORK, 3s:

Richard Thomas, being duly sworn, says that he has read the

foregoing petition subscribed by him and knows the contents thereof,

and that the same is true of his own knowledge, except as to those

nmiatters therein stated on information and belief,and as to those

matters he believes it to be true.

RICHA R D THOMAS.

Sworn to before me March 18, 1884. |

JOHN HAHNENFELD,

Notary Public, N. Y. County.

18 At a special term of the supreme court of the State of New

York in and for the county of Kings, held — the court-house,

in the city of Brooklyn, on the 21st day of April, 1884.

Present: The Honorable Calvin E. P ratt, Justice.

HENRY KIEFER

against

Tuomas Garr, R.S. Garr, Joseru F. GENT, and RicHarp THOMAS.

On reading and filing the petition and affidavit of Richard Thomas,

one of the defendants herein, dated March 19th, 1884, and praying

for the removal of this action into the circuit court of the United

States for the eastern district of New York, pursuant to the statutes

of the United States in such cases made and provided, and upon

the undertaking herein duly executed and approved by one

19 of the justices of this court, and upon the pleadings herein,

whereby it appears that the said action is of a civil nature

8 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

and is now vendinie in this ienicadaed of trial, county of Kings—

and that the matter in dispute exceeds the sum of five thousand

dollars, exclusive of costs, and involves a controversy between citi-

zens of the State of New York and the States of Ohio and Indiana,

and that the defendants have duly offered a proper undertaking or

bond, with good and sufficient sureties, for the filing of all process

against themselves in this action in said circuit court, and the said

affidavit showing that the removal of the cause is desired because

the defendants have reason to believe and do believe that by reason

of local predjudice and influence defendants will not be able to ob-

tain justice in the local courts, now, on motion of Charles S. Spen-

cer, defendants’ attorney, it is ordered that said petition be, and the

same hereby is, granted and the said undertaking duly accepted by

this court, and thatthe said action be, and the same hereby is, re-

moved to the circuit court of the United States for the eastern dis-

trict of New York, and that this court proceed ~ ee herein.

Bf. Pd. C.

Granted Apl. 21, 1884.

RODNEY THURSBY, Clerk.

20 (Endorsed:) U. S. circuit court, eastern district of New

York. Record on removal from New York supreme court,

Kings county, Henry Kiefer, plaintiff, against Thomas Gaff et al.,

defendants. Filed in the office of the clerk of the U.S. circuit court

for the eastern district of New York this 13th day of May, 1884.

21 Appearance. Entered May 13th, 1884.

U.S. Circuit Court, Eastern District of New York.

Henry KIEFER

ag’ st ie

Tuomas Garr, R. 8. Garr, JoserH F. Gent, and Richarp THOMAS,

Com posing the Firm of Gaff, Gent & Thomas.

The appearance of Charles S. Spencer as solicitor for the defend-

ants, Thomas Gaff et al., in the above-entitled action is hereby entered.

Rule.

This cause having originally been commenced in the supreme

court of the State of New York in and for Kings county, and hav-

ing been duly, by order of one of the justices of said State court, re-

moved into the circuit court of the United States of the eastern

district of New York upon the application of the above-named de-

fendants, and said defendants having this day duly filed a copy of

the record in this cause, and having duly appeared, now, on

22 motion — CharlesS. Spencer, solicitor for said defendants, and

upon the appearance and record herein, it is ordered that this

cause do proceed in this court in the same manner as if had been

originally brought herein.

Sn a es — tie

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to)

“RACHEL S. GAFF ET AL. VS. HENRY! KIEFER.

Ata stated term of the circuit court of the United States for the

eastern district of New York, held at the court-house, in the city of

Brooklyn, on the 21st day of August, 1884.

Present: Hon. Chas. L. Benedict, district judge, holding court.

Henry KIerer ag’st THomMas GAFF and Others.

Upon reading and filing the annexed consent it is ordered that C.

<< * W. Moulton be, and hereby is, substituted as attorney for the de-

fendants in this action in the place and stead of Charles A. Spencer.

CHAS. L. BENEDICT.

23 United States Circuit Court, Eastern District of New York.

Henry KIEFFER

against

Tuomas Garr, R. S. Garr, JosepH F. Gent, and Ricoarp THomas.

It is hereby consented that C. W. Moulton be substituted in my

name and place as attorney for the defendants in this action.

New York, April 21, 1884.

CHARLES A. SPENCER,

Def’ts’ Att'y, 154 Nassau —, Tribune Building, New York City.

(Endorsed:) Consent and order subsiituting attorney. C. W.

~ Moulton, attorney for defendants. Filed in the office of the

ae & 24 clerk of the U.S. circuit court for the eastern district of New

York, this 21st day of August, 1884.

At a stated term of the circuit court of the United States of America

for the eastern district of New York, in the second judicial circuit,

held at the United States court-rooms, in the city of Brooklyn, on

the 9th day of October, in the year of our Lord one thousand eight

hundred and eighty-five. |

Present: The Honorable Charles L. Benedict, district judge, hold-

ing the court.

.

ee ee

Henry Kierer vs. RacHer Garr et al.

Cause called.

- Hearing ordered.

Jury drawn and sworn.

| Appearances: M. L. Towns, attorney, and B. F. Tracy, of

- 25 counsel, for plaintiff; Geo. R. Phoebus and Chas. W. Moulton,

ae ea attorneys for defendants.

| Evidence for plaintiff offered.

Trial suspended to October 12, 1885. a

OcTOBER 12, 1855.

Trial resumed. -Same appearances.

Evidence for plaintiff resumed.

Plaintiff rests. |

Evidence for defendants offered.

Tria! suspended to October 13, 1885.

2—337 |

WR eS ea. Balas Woes #

DRED RRS OREN BEERS MAS Tab eet oO RR RE

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10 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

OcToBER 13, 1885.

Trial resumed. Same appearances. ,

Evidence for defendants resumed.

Trial suspended to October 14, 1885.

| OcToBER 14, 1885.

Trial resumed. Same appearances. |

Evidence for defendants resumed.

Trial suspended to October 15, 1885.

ee OcroBER 15, 1885.

26 » Trial resumed. Same appearances. :

Evidence for defendants resumed.

Defendants rest. |

Evidence offered by plaintiff in rebuttal.

Plaintiff rests.

Cause argued before jury.

Jury charged.

Reyuest to charge made by both sides.

Jury retire, with request to bring in sealed verdict.

OcTOBER 16, 1885.

Jury came into court with sealed: verdict; verdict opened and

recorded as follows: :

“We, the jurors empanelled in the above-entitled cause, do find

in favor of the plaintiff and against the defendanis, and assess the

damages of the plaintiff in the sum of eighty-five hundred and

twenty-two dollars ; and so say we all.”

Motion for stay of proceedings, with leave to move for new trial

granted. |

A true extract from the minutes of this court.

~B. LINCOLN BENEDICT, Clerk.

27 Motion to set- Aside Verdict.

United States Circuit Court for the Eastern District of New York.

Henry KIerer,, Plaintiff,

US. ee

Tuomas Garr, R. 8. Garr, JosepH GENT, aud RicHarD THOMAS.

Now come the defendants, Rachel 8S. Gaff, Joseph F. Gent, Rich-

ard Thomas, and Charles L. Howe and Elam H. Davis, executors

of the last will and testament of Thomas Gaff, one of the above-

named defendants, deceased, by ©. W. Moulton, George R. Phoebus,

and Miron Winslow, their counsel, and move the court to set aside

the verdict in the above-entitled action in favor of the plaintiff and

against the above-named defendants on the — day of October, 1885,

on the ground that Thomas Gaff, one of the above-named defend-

ants, was dead at the time said verdict was rendered ; that he died

on the 25th day of April, 1884, and that there has been no renewal

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 11

of said action against his executors, and that no suggestion was made

on the record prior to the entry of said verdict.

28 Wherefore the defendants claim said action ‘is abated.

Dated New York, November 2nd, 1885.

~ O. W. PHOEBUS

W. MOULTON,

Attorneys. Ph ‘Defendant and Executors.

MIRON WINSLOW, Of Counsel.

United States Circuit Court for the Eastern District of New York.

Henry Kierer, Plaintiff,

ag’st

THomas GAFF, RacHer S. Garr, JOSEPH F. GENT, and RicHarp

THOMAS.

Sir: Please take notice on the affidavit of Richard Thomas, a copy

of which was served on you on the 21st day of October, 1885, and

on the affidavits of James H. Davis, James E. Caldwell, and George

Goldman, copies of which are herewith served on you, the motion

hereto annexed will be made to this court at a stated term

29s thereof, to be held at the United States court-house, in the city

of Brookly n, county of Kings and State of ‘New Y ork, on

Thursday. the fith day of November, 1885, at ten o’clock in the fore-

noon of that day, or as soon there: fter as counsel can be heard, to set

aside the verdict for the plaintiff herein on the grounds set forth in

said motion.

C. W. MOULTON,

| GEORGE R. PHOEBUS,

Attys for Defendants, 154 Nassau Street, New York City.

MIRON WINSLOW, Of Counsel.

STATE OF OHIO,

County of Hamilton,

James H. Davis, being duly sworn, says that he now is, and for

the last past thirty-two years has been, assistant undertaker with

John F. Wiltsee, undertaker, Nos. 298 and 295 West Sixth street,

Cincinnati, Ohio. Affiant says that he personally knew the deceased,

Thomas Gaff, of Aurora, Indiana; that he was, on the 25th day of

April, 1884, called upon to dress and embalm the body of the said

Thomas Gaff, and did so dress and embalm the same, the body

30 being brought to this establishment, Nos. 292 and 295 West

- Sixtb street, Cincinnati, Obio, for that purpose; that after

dressing and embalming said body the same was shipped from this

establishment on April 27th, 1884, to Aurora, Indiana, and that the

same was returned to this city and interred at Spring Grove ceme-

tery.

JAMES H. DAVIS.

88 -

—_.

are PR GOERS AEE OS OPO ee aes

12 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

Sworn to and subscribed before me by said James H. Davis this

23rd day of October, 1885.

WILLIAM H. JONES,

Notary Public, Hamilton Co., Ohio.

County OF HAMILTON, ss:

James 8. Caldwell, being duly sworn, says that he is a practicing

physician, having his office at No. 192 West Seventh street, Cincin-

nati, Ohio. Affiant says that on April 25th, 1884, he was called on

to see Thomas Gaff, of Aurora, Indiana, said Gaff being on that

date in Cincinnati; that he did call on him on said daté and found

him dead, the body being still warm at the time he called on

him, said Gaff having died about ten or fifteen minutes before

affiant reached the house where said Gaff was and where he had

died ‘

ol J. S. CALDWELL, M. D.

Sworn to and subscribed before me by said J.S. Caldwell this

23rd day of October, 1885. |

WILLIAM H. JONES,

Notary Public, Hamilton Co.; Ohio.

Affidavit. |

City AND County oF NEw YORK, 88:

Circuit Court of the United States, Eastern District of New York.

Henry Kierer, Plaintiff,

* U8.

Tuomas Garr, Racuer S. Garr, Josepu F. Gent, and Ricwarp

| THomAS, Defendants.

George Goldman, being duly sworn, deposes and says’ that he is

over twenty-cne years of age; that he is at present in the employ of

the firm of Gaff, Gent & Thomas, of Columbia, Indiana, and New York

city; that he is the confidential agent of said firm in New

32 York and knows each member of said firm ; that he wasin the

employ of said firm at the time of the death ot Thomas Gaff,

one of the defendants in this action, on the 25th day of April, 1884;

that he has read the affidavits of James H. Davis and J. S. Cald-

well, which are hereto annexed, relating to the death of said Thomas

Gaff, and that he knows the Thomas Gaff therein mentioned is the

identical Thomas Gaff who was in his lifetime a member of said

firm of Gaff, Gent & Thomas, and who is one of the defendants men-

tioned in the above-entitled action. me

GEO. GOLDMAN.

Sworn to before me this 2nd day of November, 1885.

MIRON WINSLOW,

Notary Public, New York County.

RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER. 13

(Endorsed :) Copy affidavits & notice of motion to set aside ver-

dict. C. W. Mouiton, Geo. R. Phoebus, attorneys for defendants.

33 Ata stated term of the United States circuit court for the

eastern district of New York, in the second judicial circuit,

held at the United States court-rooms, in the city of Brooklyn, on

the 24th day of February, in the year of our Lord one thousand

eight hundred and eighty-six.

‘Present : Hon. Charles L. Benedict, district judge, hubilien court.

Henry KIEFER

against

THoMAS GAFF, R.S. GAFrF, JosepH GENT, and RicHarp THOMAS.

A motion having been made herein by C. W. Moulton and George

R. Phoebus, attorneys for defendants, in behalf of Rachel S. Gaff,

Joseph F. Gent, Richard Thomas, defendants, and Charles L. Howe

and Elam H. Davis, executors of the last will and testament

34 of Thomas Gaff, one of the above-named defendants, deceased,

to set aside the verdict in the above-entitled action in favor

of the plaintiff and against the above defendants, upon the ground

that Thomas Gaff, one of the above defendants, was dead at the time

the verdict was rendered, and that he died upon the 25th day of

April, 1884, and that there has been no renewal of said action against

the executors, and that no suggestion was made on the record prior

to the entry of said verdict, and to have the court declare said action

abated for said reasons set forth ;

And said motion having duly come on for a hearing before this

court at a stated term thereof, held at the United States court-house,

in the city of Brooklyn, county of Kings and State of New York,

on Thursday, the fifth day of November, 1885, at 10 o’clock in the

forenoon of that day :

Now, after hearing Messrs. C. W. Moulton and George R. Phoebus

in favor of said motion and M. L. Towns in opposition thereof—

It is ordgred that said motion be, and the same hereby is, denied

in each and every respect.

And it is further ordered that the death of the said Thomas Gaff,

one of the defendants herein, be declared and suggested upon the

record herein.

30 And it is further ordered that the plaintiff have costs of

this motion.

CHAS. L. BENEDICT.

_ (Endorsed:) Order denying motion to set aside verdict. M. L.

Towns, attorney for pl'ff. Filed in the office of the clerk of the U.

S. circuit court for the eastern district of New York this 24th day of

February, 1886.

At a stated term of the United States circuit court for the eastern

district of New York, in the second judicial circuit, held at the United

States court-rooms, in the city of Brooklyn, on the 24th day of Feb-

7S RR act ae

Se TRE egess SINS ee rte neler eres pee

14 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

ruary,in the year of our Lord one thousand eight hundred and

elghty-six.

Present: Hon. Charles L. Benedict, district judge, holding court.

Henry KIEFER

: against

Tuomas Garr, R.S. Garr, JOSEPH GENT, and RicHARD Pie AS.

It appearing to the we ming of this court by the affidavits

36 of James H. Davis, residing at 295 & 295 West Sixth street,

Cincinnati, and the affidavit of vl S. Colwell, residing at

192 West Seventh street, Cincinnati, both dated October 23rd, 1885,

and the affidavit of George Goldman, dated the 2nd day of Novem-

ber, 1885, that Thomas Gaff, one of the ecodefendants in this action,

died after the commencement of this action and before verdict herein

had been entered, to wit, on or about the 25th day of April, 1884,

and this action being against several codefendants, and the cause

of action being a cause of action that survives against the other de-

fendants as provided by law, it is hereby ordered, upon motion of M.

L. Towns, attorney for plaintiff, that said cause of action survive

and proceed against the: defendants, R. S. Gaff, Joseph Gent, and

Richard Thomas, the surviving codefendants, and that the death of

Thomas Gaff, the other codefendant herein, be suggested, and hereby

is suggested, upon the record of this action.

I hereby direct that judgment given herein against the defeind-

ants be entered against the surviving codefendants, R. 8. Gaff, Joseph

Gent, and Richard Thomas, 1n- accordance with this order; to all

of which om endants except.

CHAS. L. BENEDICT.

(Endorsed :) Order denying motion to set aside verdict and direct-

ing judgment to be entered against surviving codefendants.

37° M.L. Towns, pl’ff’s attorney. ’Filed in the office of the clerk

of the U.S. circuit court for the eastern district of New York

this 24th day of February, 1886.

At a stated term of the United States circuit court for the eastern

district of New York, in the second judicial circuit, held at the

United States court-rooms, in the city of Brooklyn, on the 24th

day of February, in the year of our Lord one thousand eight

hundred and eighty-six.

Present: Hon. Charles L. Benedict, district Judge, holding court.

Henry KIEFER

| against

Tuomas GAFF, R. S. Garr, JosePpH GENT, and RrcHARD THOMAS.

A motion having | been made, on behalf of the defendants, by C.W.

Moulton and George R. Phoebus for a. new trial on the minutes of

this action, upon the grounds—

That the verdict rendered herein was contrary to the wislilibinin

That said verdict is ag: ainst the weight of evidence ;

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 15

That said verdict is contrary to law;

38 That the court committed manifest error in refusing to

admit evidence offered by the defendants that should have

been admitted, to which defendants duly excepted at the time;

That the court committed manifest error in admitting evidence

offered against the defendants, to which the defendauts duly objected

and excepted at the time ;

That the court committed manifest error in refusing to dismiss

the plaintiff’s complaint at the close of the plaintiff’s testimony, to

which defendants duly excepted at the time;

That the court committed manifest error in charging the jury, on

the pleadings in this case, that the defendants were liable for the

fraud of their agent, committed without their knowledge or con-

sent, to which the defendants duly excepted at the time;

That the court erred in charging the jury as to the rule of dam-

ages governing this action, and for other manifest errors in said

proceedings—

And said motion having been duly before this court for argument |

on the 28th day of December, 1885:

Now, after hearing C. W. Moulton in favor of said motion

and M. L. Towns and B. F. Tracy, of counsel for plain-

oo tiff, in opposition thereto—

It is ordered that said motion be, and the same hereby is, de-

nied upon each and every ground taken in every respect.

And it is further ordered that the stay heretofore granted the de-

fendants prohibiting the plaintiff from entering his judgment against

the defendants be, and the same hereby is, vacated and set aside, and

the plaintiff is hereby perinitted to properly enter up his judgment

aud proceed thereupon according to law and practice of this court

and against the surviving codefendants in this action.

To all of which said defendants except and pray an appeal in

open court to the Supreme Court of the United States, which is al-

lowed.

CHAS. L. BENEDICT.

(Endorsed :) Order denying motion for a new trial and vacating

stay. M. L. Towns, attorney for pl’ff. Filed in the office of the

cierk of the U.S. circuit court for the eastern district of New York

this 24 day of February, 1886.

40 At a stated term of the circuit court of the United States of

America for the eastern district of New York, in the second

judicial circuit, held at the United States court-rooms, in the city of

Brooklyn, on the twenty-fourth day of February, in the year of our

Lord one thousand eight hundred and eighty-six.

Present: The Honorable Charles L. Benedict, district judge,

holding the court.

Henry Krerer, Plaintiff, vs. THomas Garr et al., Defendants.

The order denying the defendants’ motion for a new trial herein

having been granted by the court on the twenty-fourth day of Feb-

16 RACHEL S. GAFF. ET AL. VS. HENRY KIEFER.

ruary, 1886, and permitting him to enter his judgment herein, and

the defendants intending to appeal from the judgment herein to the

Supreme Court of the United States, and said appeal having been

allowed on motion of C. W. Moulton, defendants’ attorney, it is

Ordered, That the defendants have thirty days from the

41 entry of judgment herein in which to prepare and file bill

| of exceptions. |

CHAS. L. BENEDICT.

(Endorsed:) Order. C. W. Moulton, Geo. R. Phoebus, att’ys for

defendants. Filed in the office of the clerk of the U.S. circuit court

for the eastern district of New York this 24th day of February,

1886. :

Judgment. February 26, 1886.

United States Circuit Court, Eastern District of New York.

Henry KIEFER

ag’st

THomaAs GAFF, Racuer 8S. Garr, JosepH F. Gent, and RIcHAarRpD

T :

HOMAS..

42 The above-entitled action having been tried before the Hon.

Charles L. Benedict, one of the judges of this court, and a

jurv at the October term of this court, 1885, and a verdict having

been rendered in favor of the plaintiff against the defendants for

eight thousand five hundred and twenty- two dollars ($8,522), and

the defendants having made a motion for a new trial on the excep-

tions taken on the trial, and the said motion having been enter-

tained and ye AE by C. W. Moulton, Esq., attorney for the defend-

ants,and M. L. Towns, Esq., attorney for the plaintiff, and B. F.

Tracy, a: of counsel, and due deliberation having been had, and

the court after due consideration having overruled and denied said

motion and directed judgment to be entered on said verdict, and a

further motion having been made to set aside the verdict as to

Thomas Gaff (deceased), one of the defendants, and an order having

‘been entered denying the same and directing that the fact of the

death of defendant, Thomas Gaff, be declared and suggested on the

record herein:

Now, on motion of M. L. Towns, Esq., attorney for plaintiff, it is

adjudged, considered, and determined that said plaintiff, Henry

Kiefer, do have and recover judgment-against said defendants,

Rachel S. Gaff, Joseph F. Gent, and Richard Thomas, the-

45 surviving codefendants in this action, for the amount of said

verdict, eight thousand five hundred and tw enty-two dollars

($8,522) and $168.65 costs and disbursements in this <¢ action, as taxed.

It is ordered that said plaintiff have execution against said sur-

viving codefendants for the amount of the verdict herein.

By order of court:

B. LINCOLN BENEDICT, Clerk.

Dated February 26, 1886.

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 17

(Endorsed :) Judgment-roll. Amount of verdict_--_- —- $8,522 00

_ * eoete. ic. ss 168 65 —

$8,690 65

Filed in the office of the clerk of the U.S. circuit court for the east-

ern district of New York this 26 day of February, 1886.

At Bill of Exceptions.

United States Circuit Court, Eastern District of New York, in the

Second Circuit.

Henry KIerer, Plaintiff,

7 against

THomas GAFF, R. 8S. Garr, Josern F. Gent, and RicHarp THOMAS,

Composing the Firm of Gaff, Gent and Thomas, Defendants.

This action was commenced on the 6th day of August, 1883, in

the New York supreme court, Kings county, by the service of sum-

mons and complaint. The defendants appeared and answered the

complaint, and then the cause was removed into the circuit court of

the United States for the eastern district of New York, on the 13th

day of May, 1884. The issues came on for trial at a term of the

circuit court held by the Honorable Charles L. Benedict, one of the

judges of said court, on October 9th, 1885. A jury was duly im-

panelled and sworn, and thereupon the plaintiff opened the case

to the jury, and there, to maintain the’ issues upon his

45 part, called as a witness Henry Kiefer, the plaintiff, who, being

duly sworn and examined, testified as follows:

In am the plaintiff in this action and am engaged in business at

Nos. 136 and 142 Scholes street—the business of brewing lager beer.

.l was in such business in 1882. and 1883. I know Mr. Thomas, of

the tirm of Gaff, Gent & Thomas, and I have had dealings with

said firm. At the time I first commenced I bought from Benjamin

Marshall in 1882; I bought of him first. He was not the manager

of Gaff, Gent & Thomas; he was an agent. The manager for Gaff,

Gent & Thomas was O. O. Bennett, and he was the manager in 18898,

I first commenced purchasing cerealine from the defendants in the

spring of 1882, 1 think. I purchased it for brewing lager. I told

the defendants that 1 purchased it for brewing lager. I saw Mr.

Bennett himself. Cerealine had been on the market for some time.

Mr. Marshall came to me and offered the goods, and I told him that I

wanted to see the firm themselves, and he said that none of the firm

had been in New York, but he woulda send over O.O. Bennett. He

was the manager of Gaff, Gent & Thomas. I saw O.O. Bennett then.

I have the bills here toshow. In my conversation with Mr. Bennett

I told him that lager beer was a very pecaliar article, and that we had

to have nothing but first-class goods. Heguaranteed me. I told him

I didn’t want anything but the very best; I didn’t mind the price ;

that I wanted the very best, and also I wanted his guarantee, and

I—397

>

18 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

he guaranteed the goods. ‘This was the time w hen this product was

new, in 1882. He stated this product would supply the place of

malt in the brewing of lager beer—mixed it with malt. He said it.

would have a good effect on the beer, and so it did have fora year and

ahalf. It had first-class effect. It madea better class of beer; a little

duller than the usual color is of malt; in fact, I was very well

suited. It gives the beer an amber look ; it assists in fermentation.

I continued to purchase of these defendants, through O. O. Bennett,

up to July 3d, 1883; that was the last we got. On the 3d of

July my foreman called me—came into the office—and besiealal in.

a lump of the cerealine, and Says : “ Now, boss, I have found out

what the difticulty — ” (Interrupted here by his counsel and

46 told to state just what he saw.) I saw this cerealine. Before

this, in the latter part of May or June, I had a conversation

with Mr. Bennett. In the fore part of June, 1885, we detected that

our beer wasn’t right. I sent for Mr. O. O. Bennett; at first I had

a talk with my foreman; he wanted to know where the blame laid;

he couldn’t see, and then I sent for Mr. O.O. Bennett. I says,“ Mr.

Bennett, just taste this. beer.” I says, “ Don’t you think that this

probably lies in the cerealine?” He says,“ No.” I says, “ We had

such good effects right straight along for a year and a half, and we

continued brewing in the same way, and this beer isn’t palatable ;

it don’t taste like it ought to, and hasn’t got any gloss.” I told him

that I had trouble with my customers. He says, “ You have been

buying of us right along, and we told you we guaranteed our

goods ;” and I says, “Iam paying a high price for ny goods.” [

always paid the highest market price; and I says, ‘“ There seems to

be something wrong.” He says, “ You can go ‘ahead ; by my word

of honor you will get first-class goods. I will guarantee the goods.”

When I told him I was using the defendants’ article he said he

wouldn’t have it; it was not the cerealine that spoiled the beer. He

said the goods he was selling then was the same quality as those he

had already sold. I said that I was having a regular uproar in

business; that my customers were finding fault: the beer was not

fine—he could see for ewe “Nini he said he positively told me it

wasn t the cerealine. He told me to go on and use it. I afterwards

purchased from him during the month of June and till the 3d day

of July I got the last. I brewed from May Ist till May 3lst 2,445

barrels and sold 2,199. From June Ist till June 30th I brewed

2,395 barrels. I don’t mean that I brewed that much, but it wasn’t

drinkable ; that wouldn’t naturally become dritikable for six weeks

or so. Ll made these 2,395 barrels by using this cerealine—this

cerealine that | bought from O. O. Bennett. (Witness produces bill

of the cerealine Mr. Bennett sent him.) The beer that I brewed in

June, after this conversation with Bennett, I mixed with «the old

beer. Beer that lays six or eight weeks gets kind of stale; there is

no life to it. Then we work it up with “what we call livening- -up

beer. After the beer is brewed we give it yeast, and in about twenty -

four hours or in sixty hours or maybe seventy hours that beer comes

on, and we ferment with the newly-brewed beer. ‘Then we

47 take, say,about ferty barrels, and we take about seven barrelg

~*~ 2s

aaehee

>

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 19

of this new beer to work up the old. That beer works till it

works itself clear, so that in about two weeks thereafter it is fit for

sale. This is a common practice; cannot do no other way. By put-

ting that new beer with the old it gave better lager. As soon as we

detected, about the fore part of June, we found our beer wasn’t as

fine as it used to be by a good deal.

Q. Did you get anv beer back ? |

A. O, God, yes; we got back close on to 300 barrels. What I

inean by barrels is 4 quarters to a barrel. There are four kegs to a

barrel. Well, we traced that beer back when we found out—

4). How do you know that these 1,200 kegs returned was that

beer? How do you designate it? Was that the beer that was

mixed with beer that was brewed in June?

(Counsel for defendants objects to the form of this question. Ob-

jection overruled; to which ruling counsel for defendants excepts.)

A. It was beer that was livened up about the Ist of June with

new beer. The beer that was sent back to me I had to let run into

the sewer. It was destroyed. The market price of beer during the

vear of 1883 was $8.00 a barrel. I saw this cerealine that I bought

before it was put into the beer. When I saw it, by the look you

couldn’t tell the difference. You couldn’t tell the difference till

after we got into trouble. By the looks you couldn’t tell, or we

wouldn’t have used it under no circumstances. Using an impure

article for a month would ruin our business entirely. The $8.00 a

barrel that beer was worth in 1885 included $1.00 revenue stamp.

We had to put the revenue stamp on the beer we sent out to our

customers. I sold that beer for $8.00 a barrel, including the $1.00

revenue stamp. There was no money paid for the beer that was re-

turned.

Counsel for defendants moves to have all this testimony go in

subject to objection and exception.

48 (Motion granted. All evidence of the quality and quantity

of beer spoiled went in subject to exception.)

~Q. Was there any more of this beer brewed during the month of

June destroyed ?

A. Yes, sir; it was let run in the sewer; 1,580 barrels were al-

lowed to run in the sewer; the men ran it intothesewer. This was

all June beer; that did not include the 300 barrels; these three

hundred barrels had been served to customers and they returned

them; then the revenue condemned this. That beer was worth $7.00

a barrel without the revenue stamp; if it was good beer it would

have been worth $7.00 a barrel without the revenue stamp: when we

destroyed it it wasn’t worth anything at. all or we wouldn’t have

destroyed it.

It was on or about the 2d; 3d, or 4th of June that I had the

conversation with Bennett. I sent for him on two or three occa-

sions in the month of June. |

Q. Was any beer brewed by you during the month of June or

May, or up to the 3d of July, and mixed with the beer that was good

°

20 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

prior tothe mixing? Wasany other beer destroyed? Did you lose

any other beer by reason of these brewings in June from this ar-

ticle ?

A. Well, part of it; ves. [tis hard to say how much. We had

to get along the best we could in order to bold the trade, and stopped

at once using the cerealine when we found it was the cerealine.

After the 3d day of July we brewed beer with pure‘malt. We mixed

the old beer then with the young beer brewed with pure malt. The

young beer is two or three days old when we mix it with the old.

It is then sufficiently fermented to mix with the old beer. The beer

that we mixed with the pure malt after the 3d day of July was

brewed about the latter part of April. After that it continued good.

That beer was good, any more than it was rather young. We had

to take it younger than was usual in order to get over the other

trouble. It was returned—the other. The beer was good, only

49 it was a little young; that was all. When we ceased mixing

the old beer—the beer that was made ahead of July—with ©

the beer made with this bad cerealine, that beer—the old beer—

was good. After we stopped using this cerealine we had no bad

beer. The young beer wasn’t bad. It had a good taste and gloss

that was not bad. It was only a few days until we got in rotation

again. There was other damaged beer in our cellar that was

directly traceable to this cerealine. -It was 1,780 barrels and 750

barrels. That was brewed in the months of May and June.

-Q. That was a part of this 4,000 barrels ?

A. Yes,sir; over 4,000. The revenue condemned it. I kept it

back on your (Mr. Town’s) suggestion on account of this ease com-

ing up. We would have kept the other 1,580 barrels, only we hadn’t

room, so we kept that back until December, 1884: then we kept 750

barrels back until November of this year. It was finally run into

the sewer by the revenue ofticers. The beer that we lost by reason

of this article was 265 barrels in July and 1,580 barrels that was run

into the sewer in October, 1883.

Q. And brewed during the month of. June, and the 750 barrels

run into the sewer, a subsequent date, also brewed at this time, and

the 1,730 barrels ?

A. Yes, sir; about that. I have the revenue books here.

The Court: That makes 4,325 that was destroyed, if I have footed

it right. | :

Isaw Mr. Thomas after the bringing of this suit in my place of

business. He called upon me. He bid me the time of day, and I

told him that he had the best of me: that I didn’t know who he was. .

He told me he was one of the firm of Gaff, Gent & Thomas, and he

said, “lam Mr. Thomas.” T said, “ Yes?” And he wanted to know

if I hadn’t got tired of the suit and if I didn’t want to withdraw it.

There was a balance then of six hundred and odd dollars that I

owed the firm, and that by dropping that I might drop the suit.

I says, “ No, Mr. Thomas, if you are one of the firm you have

50 ruined me.” I says, “‘ That firm has ruined me, and,” says I,

“there murt be some remedy to pay me back.” And he

aa

ia 8) %

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 21

savs, “ Well, we will see. Weare hard cases. We have got several

millions of dollars.” He says, “ We have got more money than you

have.” I told him that their bad cerealine ruined me and my suit

was for that. 7

Q. He referred to this suit?

A. Yes, sir. (Counsel for defendants objects to this as irrelevant.)

“When I told him the way the cerealine had ruined me he never an-

swered ; he never said it was bad or good or anything else. He

thought that I ought to drop the case by them dropping that bill

that I owed him. I still owe him $640 for malt during the month

of June.

Counsel for defendants concedes that the cerealine has not been

paidfor,and that a suit is now pending, and moves to strike all this

testimony out.

Counsel for plaintiff objects.

The Court: I don’t see what it amounts to.

COUNSEL FOR PLaIntTiFF: It amounts to an allegation made by

the plaintiff to one of the defendants that his bad cerealine had

ruined bim, and that he neither denies that his cerealine was bad

or asserts that it was good.

The Court: I think it may go to the Jury.

The defendants except to this ruling.

On cross-examination the witness testified :

(). Have you your revenue books in court?

A. I have my revenue books in court. I have all the bills of

Gaff, Gent & Thomas. I got some of these from 45 Water street

and some pier 1 and pier 4, North River. | never bothered about

who kept the storehouse at 43 Water street; I bought directly from

O.O. Bennett. I don’t know the name of the man who keeps

51 the storehouse at 43 Water street; I was told yesterday it

was a Mr. Green. We carted the goods from New York to

our brewery. My drivers were my cartmen. There is different

drivers; I cannot give the names. John Pfeiffer :s one I know; he

isnow in court. Itis hard to say what other drivers I had at that

time; I cannot remember their names; I had six or seven. I can-

not remember the names of those I had in 1883. There are

‘none of them still employed, as I know of. I don’t know

where they are now; I tried to find them. This man isn’t working

for me now. I did not go after these goods personally myself. I

was not present at any time when the goods were delivered to my

teams. I cannot from my books tell you where each truck-load of

goods was taken from during that period of time—between the 31st

day of April and the 3d day of July, 1883. I purchased from O. O.

Bennett. One time I sent the wagons to one place, and another time

they would send it to another place ; Idon’t know where the wagons

went. I sent the wagons to No. 1 Front street, in New York, to the

office of the defendants; I sent my wagons in all cases to No. 1

Front street, and they got directions where to go and get it. I saw

Mr. Bennett first in 1882, in my office, in Brooklyn. I don’t know

. * tae

tN .

aly : Siebert Bed if yt

. . a hae

sen dLp atan i. Cialis tay i Ria A te ie RE ies Sets Ngee A cic oi EST DS Fat

22 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

as there was any one present at that time; saw him in the after-

noon, about along between two and three. Mr. Bennett’s salesman

was not with him. Previous to that the salesman offered me goods,

but I wanted to see Mr. Bennett first. The salesman hac a sample

of the goods that he sold. He did not sell them to me by sample.

I would-not buy until I had the guarantee of the firm.

Q. You didn’t buy any of these goods, then, by sample ?

A. We tried the first brewing and found that to be good; then I

continued to buy by the guarantee. [ had no sample of the goods

that were purchased between the 3d of April and the 3d of July; I

only had one sample; that was when I first purchased. When the

first goods were taken to my brewery they were taken up in the

hop-room; the hop-room is a dry room on the 3d floor. Hops were

in my hop-room at that time. There were no other brands. of

cerealine or malt'in the hop-room at that time; I never purchased

any from anybody except in this way. This cerealine came in bags.

.I don’t think I kept it a week before I sold it. We gener-

O2 ally got it every day or every other day or every three days.

I ain sometimes at my brewery at 4 o’clock—3 o’clock in the

morning. My foreman has the supervision of the management of

my business. I generally look all over to see that things are going

right. I usually see the materials when they are put into the mash —

tub, and I saw this cerealine when it was put in. Sometimes I had

itin my bands. I never dreamt of examining it. You couldn’t

tell anything by looking at it. I had some of that in my hands

that turned out bad, but I didn’t see anything the matter by its

looks. It looked about the saine as the other. It looked a little off,

but you could hardly tell it. We only thought it looked a little off

after we found out that it was that. We thought it didn’t have the

natural color that it really had. I am not positive of that now.

Q. You didn’t remember what color it was until your beer was

spoiled ?

A. O, yes; O, yes.

Q. You did?

A. Yes, sir.

4. You noticed the color at the time you looked at it, didn’t, you?

A. The coior wasn’t so bad; no, sir.

Q. You say you noticed some little defect about it when you

looked at it ?

A. After we found out, after I saw the lump of that, it didn’t

have quite the same look. I saw the lump on the 3d day of July.

It was a lump about as big as my two fists. It was moldy—moldy

cerealine. I found the lump the day it was unloaded. !

Q. It was unloaded that very same day ?

A. Yes, sir. 6

Q. You didn’t use it in the manufacture of beer ?

A. Guess not; no, sir.

Q. You didn’t put any of it in any ?

. No, sir; we had it home and saved it for a long time. I have

not got it there yet. The men have destroyed it. I am sorry I

have not got it. The lump was discolored. It was kind of the color

Coggins ORG se N DIT SPS Wea tee canen ey

aay POPE aR Airape 3

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 93

of the wall (indicating wall of the court-room), of the red wall. The

lump was offered to me by my foreman. He took it out of

D3 the bag. He did not take it out in my presence. Mv fore-

man found them. I didn’t find any of those lumps prior to

July 3d; never heard of them.

Q. And that quantity of cerealine you never used at all?

A. Yes.

Q. The quantity that you purchased. |

A. For July? That in which the lumps were I never used for

-anything. The foreman brought me a lump of this cerealine and

says, “I guess I have found out now where the trouble comes from.”

When I saw the lump I tested it; put it in hot water. I found

Jumps in about 6 or 7 bags. I think it was the 3d day of July I

found those lumps. I have not bought any goods from the defend-

ants since that time. That was the first time I had observed the

lumps. Those bags were in the hop-room when I examined the

lumps, where all the other bags of cerealine that 1 had received had

been placed when they came into: my place. I examined all the

bags we had on hand that day. No; I didn’t examine them all.

That lump was enough.

(). You just told the court you examined the rest and found where

there were lumps.

A. I said I examined those 6 or 7 bags and there were lumps in

them and that was enough. I peas there were about 30 or 40

bags. I don’t know how many there was that day, but I found the

Jumps in them. I didn’t examine the 6 or 7 bags myself. The

men that were unloading them found the lumps and showed me,

and, of course, 1 saw them. The men opened the bags and looked

at ‘the lumps in my presence. They found the lumps and they

were hard as stone, and those they opened and got the lumps out

and showed me. The bags that we didn’t examine—the 30 or 40

bags—we used for cow feed. We made the offer to Mr. Bennett to

return the bags to Gaff, Gent & Thomas on or about the 5th or 6th

of July, 18838, at my office. I showed him the lumps and he said it

might have gota littlewet. Ll offered toreturn bim the goods then and

he wouldn’t have anything to do with it. He claimed thatthe

54 goods were good. He said they had got a little damp. He

told me these goods were good goods. He said they had got

a little wet,and he adinitted that they couldn’t be good. We offered

to return him the 30 bags that were wet, and he said the goods were

sold and delivered and he wouldn’t take them back. We used to

get a luad every day or every other day—about 25 or 30 bags to a

load. This lot I speak of is one load that came. I sent for Mr. Ben-

nett and showed him the lumps, and told him to take it back, and

he said he would not. 1 couldn’t tell where that delivered on July

3d came from. We sometimes bought cerealine from Gaff, Gent &

Thomas, and sometimes meal.

Q. Now, on the 3d day of July did you buy any meal?

A. I couldn’t say whether it was meal or cerealine.

Q. You couldn’t swear whether these lumps that were found—

Sypthea as sie i 5: bl hi a ARSED deg Ne Sibi Sai: DO (ka eee” j rape isesssmnssnen

‘

24 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

you couldn’t swear whether they were in cerealine or whether they

were not meal ?

A. They guaranteed both goods to me as first-class goods.

By the Court:

Q. Was this meal that you looked into or was it cerealine ?

A. I couldn’t say without looking at the bill. That lump ‘that I

examined was either meal or cerealine. I couldn’t say whether it

was cerealine or cerealine meal; it was used for the one purpose. I

can tell the difference between cerealine and meal when I see them.

I don’t know what was in those bags. Cerealine meal is finer; that

is all; it is the findings of cerealine. I will swear that on the 3d

day of July I bought cerealine from the defendants ; the goods that

I bought was all cerealine. I believe I bought both cerealine and

cerealine meal on the 3d day of July. [ couldn’t positively swear

to it. I bought cerealine ; they are both cerealine. I couldn’t say

whether the lumps we found were in the coarser grade of goods or

the finer grade of goods.

(It was conceded by the plaintiff that the cerealine bought

55 on or about July 3d, the cerealine that the plaintiff alleges

was bad, has not been paid for, and suit has been brought for

the recovery of the price and is now pending.) :

Q. When these other lots of goods were being used by you in the

manufacture of lager beer, and you, as you have testified, were con-

stantly going around and looking at everything, you didn’ : discover

any of the lumps like that, did you ?

A. No, sir; if we had we would have tumbled to it cient:

Q. Could those lumps have been caused by the corn being frost-

bitten before it was manufactured ?

A. The corn—I should judge by the corn being frost-bitten that

it isn’t a right corn; that it is likely to get moldy and hot; it is

likely to get hot and moldy and lumpy; but I am not an expert at

it. I think this suit was first brought in the fall of 1883. I had

conversation with the customers to whom I sold this beer after its

return. Iknew a man by the name of George Roming, keeping a

saloon at No. 171 Essex street, New York. a had a conversation

with him about this beer. I told him that I acknowledged that the

beer wasn’t as it ought to be; that 1 couldn’t helpit. I wanted him

to hold on until we made our beer and do the best he could. Our

cellars are kept cool by an i¢e machine.

Q. At what temperature will beer sour?

A. Why, it will stand 6, 7, or 8 degrees Reaumur. I judge that

would be about 44 by the F alrenheit ther mometer; that is about

freezing. If our beer cellars get hotter than that our beer is very

liable to be soured, if it stays there. If we find the ice macliine isn’t

stong enough we put ice in it on hogsheads or tops of hogsheads, not

in the beer. I had an ice machine during the months of May and

June, 1883. I got the ice machine from Rankin, and it was Ran-

kin’s manufacture. It was not as strong as it ought to have been.

I am not using it now; had it burned out.

OAISTER EA ASLAN

ETRE 0 AAR RE ct vy

Fad

RACHEL S. GAFF ET AL. VS. HENRY. KIEFER. =J

Q. Were you using it at the time you were burned out?

A. Not then; it was in the winter. I was using it then ;

56 ves. I had no trouble with it during the months of May and

June, no more than it was too weak; my beer cellars did not

become hotter during those months than I desired them; my ice

cellars did not get in such a condition during that period that it was

utterly impossible to use it at all; I did not tell George Reming that

tiny beer was ruined because my cellars got hotter than they ought

to be on account of the failure of my ice machine to get it down;

I did not sell George Roming any more beer; I did not have a con-

versation with Charles Follett, of 141 East 8th street, New York

city; he was a customer of mine in 1883.

Q. Did you make an affidavit in which you swore that he was a

customer of yours, and you lost his trade?

A. I couldn’t say positively; I don’t think that he had beer in

1885; still, I won’t be positive; I know they both owed me money ;

they are both skins. |

(. Will you swear that you didn’t make an affidavit in which you

swore that in 1883, at the time of the sale of these goods, Charles

Follett, of 141 East Sth street, New York city, saloon-keeper, was

a customer of yours, and because of the bad goods you sold him you

lost your trade? | |

A. I will not be positive; I did not, that I know of, have a con-

versation with Charles Follet during the fall of 1883 about beer; if

you will wait one second (addressing Mr. Phoebus, examiner), I be-

_lieve I got both of their papers right in my pocket; no, I haven't

got it.

Q. Did you have a conversation with Charles Follett, who is a

saloon-keeper at 141 East 8th street, New York city, anywhere near

the time that these goods were sold to you by Gaff, Gent & Thomas,

about beer?

A. I don’t know; I might have had; I had a mortgage against

the man, and I know he chucked my figures out; I had several

talks with him, but I couldn’t say whether I had any conversation

with him about this bad beer; I didn’t tell Mr. Charles Follett at

any time that I had madea brewing of bad beer, and that it had

been occasioned by my ice machine and the overheating of my beer

cellars; I know August Spinnacker, 4 Bleecker street, New York

city; I did not myself have any conversation with him about beer

about that time; I couldn’t say whether or not my representatives

had; I did not tell August Spinnacker at any time that I had _ lost

a lot of beer by the failure of my ice machine to keep my beer cel-

lars cool, or anything like that.

Q. Did you sell him any of this beer that was bad?

A. I sold them all beer as long as they would take it; I couldn't

say whether I sold him any of this bad beer.

Q. (Showing witness paper.) Is that a copy of your complaint in

this action ? |

A. I don’t know. |

o7 CoUNSEL FOR DEFENDANTS: I offer in evidence the copy of

the amended complaint and the schedule attached thereto of

4—337

26 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

customers whose trade Mr. Kiefer alleges he lost by the injury com-

plained of to his beer.

Counsel for defendants then reads the names in the schedule at-

tached to the affidavits.

Witness continues: I cannot remember whether I had a conver-

sation with Mr. L. Wiehl, 269 East Houston, street, New York city,

about my bad beer; | did not tell Mr. Wiehl,as I know of, that the

damage to the beer was occasioned by the overheating of my cel-

lars, caused by the failure of my ice machine to properly cool them,

although you might—in order to hold trade—you might tell them

anything : I coulan’t swear that I did not; I did not, that I know

of, have a conversation about this time with H. W. Broomer, of 237

East 26th street, relative to my beer being bad; I did not, that I

know of, tell Mr. Broomer that the change in my beer was caused

by the overhe ating of my beer cellars, which was caused by the

failure of my ice machine to properly cool it; I don’t think I saw

one-quarter of these men myse]f; I don’t know as [ had a conver-

sation about this time with Mr. A. Cotter, of 81 Rivington street,

New York, relative to ny bad beer; I will swear that I did not tell

Mr. Cotter that my beer was damaged because my beer was over-

heated by a failure of my ice machine to properly cool it; I did not,

as I know of, give that asa reason to any of my customers; I bought

part of the ice machine from Mr. H. B. Scharman; [ bought a sec-

ond-hand ice machine from Mr. Scharman and used part of it, and

the other part of it Mr. Rankin fixed up new; the main part of the

machine was new—three-quarters of it; don’t know how long Mr.

Scharman had used the machine before I bought it; don’t dispute

that the machine wasn’t up to the thing it ought to have been; I

lave proof here to show that I bought ice; | know Mr. Schalk, who

was at one time one of Mr. Bennett’s salesmen; Schalk was not with

Gaff, Gent & Thomas at the time of my trouble; I might have had

a conversation with him at that time; he was there at my place,

representing Gaff, Gent & Thomas; that was long after the suit was

commenced ; I do not know if Mr. Schalk was at. my place in July,

1883; he was not; I might have shown Mr. Schalk the piece of the

lump or hardened corn material that I have described to the

58 jury; it was Mr. Bennett who came to see me when I discov+

ered these lumps in July, and not Mr. Schalk ; when Mr. Ben-

nett was in my office I think that he and I were alone; when Mr.

Thomas paid me a visit after the commencement of the suit, there

was a gentleman there, but I don’t know whether he came with Mr.

‘Thomas, or whether he was there; he was present when I had the

conversation with Mr. Thomas; he was there in the saloon; I don’t

know whether or not he was close enough to hear our conversation ;

he was quite a distance away.

Counsel for defendants :

Q. As far as | am?

A. Oh, yes; further than that.

Q. As faras Mr. Thomas?

Yes; fully that.

Yeah omag te pois: ‘ifn,

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 27

Q. About that far?

A. Yes, sir. When ] had the interview with the revenue officer

the beer was in tanks and in hogsheads. There was none of it in

small kegs at that time. He examined and tested the beer, and |

saw him test it. I made a written application to the revenue office.

I went to the collector and reported, and [ guess I signed a paper.

I told him I had beer up home that wasn’t fit to use. I didn’t tell

any of these officers what ailed it. I went to the collector three

times. I had three different lots condemned.

Counsel for plaintiff:

@. When did you cease using this ice machine ?

I stopped using it after the fire. [I continued to use it until I

was burned out; that was in last year, in October or November.

After I stopped using this cerealine and used hops I had no troubie

with the beer that I made in July and August. It was good beer,

and IT used the same ice machine; I used it all that summer and

last summer and in 1882. I had no trouble with my beer in 1884.

Counsel for defendants :

Q. Isn’t it necessary to keep cerealine beer several degrees cooler

than it is hop beer ?

A. No, sir.

o9 FREDERICK Licnut, being duly sworn and examined asa

witness for the plaintiff, testifies:

I am a brewer: have known the defendants in the case about

since 1882; was in their employ from September, 1882, to July, 1883 ;

was engaged by them to sell their goods and intoduce it to brewers

and show them how to use it—cerealine and cerealine meal. There

is no difference between cerealine and cerealine meal, except that

one is the screenings of the other. After it is made 1 it goes over a

screen, and what falls through is the meal and the other is the cereal-

ine. Thev used to use it, before I got acquainted with them, for

food, and I have introduced it myself for them for brewers’ use ; they

say it is patented. I went through New York, Buffalo, Syracuse,

Rochester, Boston, Albany, and as far as Baltimore, beginning in

1882 and continuing until July 3,1883. I sold it extensively to

brewers ; I sold a great deal of it for them. In the latter part of June,

1883, I went to Indiana to see what was the matter with the goods.

I saw Mr. Thomas at the office; saw the superintendent and the

miller. I got there to Indiana about four or five o'clock in the after-

noon; took a wash at the hotel, and then went to see the mill.

When I got there the office was closed, and from there I'started down

to oneof the mills, and I saw the superintendent and miller—I forget

their names—and then I mislaid the papers. However, I asked

them, “ What in the world are you doing?”

CouNSEL FoR DEFENDANTS: You needn’t answer that part of the

question.

The next morning I came to Mr. Thomas in his office, and he was

1

28 - RACHEL 8S. GAFF ET AL, VS. HENRY KIEFER.

very much astonished to see me there, he said, and as I spoke to him’

says I, “ What in the world is the matter with your goods? There

is a terrible sight of complaint, and our goods sent back from all

the customers I sold to,” and he says,“ Well, Mr. Licht, we can do

no better, Our corn in this section of the country is all frost-bitten.

It is the best we can do; we can do no better; it all got frost-bitten,

and we can’t get no better corn here to make it.” “ Well,” says I,

“vou better not make any goods. I would just as lief sell a baker

flour with arsenic or poison to make bread as to sell a brewer that to

make beer with.” “ Well,” he says, “it is the best we can do. We

can’t do any better; we can’t get any better corn in this section of

the country.” I saw the corn they were using in the mill at that

time in the morning, before I went to his office. I was there in the

latter part of June. |

Q. Now, tell us what you saw in the corn ?

60 COUNSEL FOR DEFENDANTS: We are not trying the issue of

any cerealine. made after July 3d, and this was in the latter

part of June.

(Objection sustained. Plaintiff excepts.)

_ A. I think I was there some time after the 18th—about the mid-

dle of the month or latter part of the month. I saw them handling

at the mill at that time white corn, which was what I eall shrunk ;

the kernels shrunk up like a pear or anything like that that isn’t

alive. Tt shrunk up and gets small kernels, and I saw in one hand-

ful about ten or ten to fifteen black kernels—that is, decayed ker-

nels—which shows in the ears of corn. I picked them out. That is

what I seen done. The first of all the complaints I heard I reported

to Mr. Bennett. It was in June that I first heard complaints from

my customers—about the middle of June. I went west in two or

three days after I heard of these complaints. The first [ heard of

the complaint was after I got back from a trip from Buffalo to Syra-

cuse and through that section of the country. That was some time

in the fore part of June. That was the first. Some of my custo-

mers had been using this a year anda half. They had been using

it through me since the September before. I know how good cere-

aline affects beer. The effect of brewing is after the fermentation,

when goods are sold and have been ripened properly as nature

would ripen them. They don’t have what we call an after fermen-

tation when they are refined. Instead of refining, the other will not

refine. After it 1s frost-bitten or is not matured in its growth it will

not refine. You can’t get it clear. The beer stays muddy and riley

and the yeast becomes from one batch to another worse and worse,

which is a hard thing for a brewer to tell—to get into it at certain

times. It will show at certain times and at certain times it will

show less. The first yeast we use in brewing and the first bad goods

we get that beer wouldn’t show quick, as that stock is good and it

works it up, and the next stock will take it up and work it and the

next will get worse, and goes on. Finally, by using it longer it will

get so bad our beer will all turn. I have seen it in a number of_

‘ases in these goods and also in other goods.

| 2 EOD CE As SRE LIN veo 6

RE RICE SERA coves Sect ea

ee

ALS Soe f Baht,

POSE echteenas Wekeoien

+ apres Petats<

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 29

Q. What effect has frost upon unripe corn ?

A. Well, frost on corn—of course, as corn has been in its milky

stage at the time it gets frost it doesn’t get ripe, and some of the

kernels as it gets more or less’ mature will turn black and

6] rot, and the other seems to be wilted up, and when they make

that up into meal it all sours and spoils. It would get what

, and get a handful of that in the trade—a man will get

we eal!

‘it in their hands and squeeze it and it would crack like a glass ball,

and there are all through that meal.

Q. When did you discover this?

A. I didn’t discover it until I come back from Buffalo. The man

that.sent their bags back, some of it lumpy, and it was hard in the

bag and turned what we call foxy color, and a good cerealine will

stay in color well. Ifsound it never spoils. 1 discovered this de-

fective cerealine by the complaints, and I examined what they sent

back and found it was lumpy and off color, foxy, which it wasn’t at

the commencement, when they took it there; hadn’t got foxy. They

sent their goods from Indiana to pier 4 and it all got bad on the

pier. Sea flour is made out of some parts of this. That also turns,

and I know that parties wouldn’t give a cent a barrel for sea flour,

because they wouldn’t use it. They was afraid of it. It used to

have a very good name. Thomas told me the corn—there was no

better corn that they could get in that section of the country, be-

cause the corn they had there was bitten by the frost. He showed

me the corn there. He told me acorn and showed me some of the

corn in his office which they had in that section of the country to

make it of. Hesaid he could get no better corn than that, and I told

him that that wouldn’t do; that I would not sell any of that to brew-

ers, because I would only ruin him and ruin myself. Before I came

back I went to Terre Haute and I saw some millers there. I came

back to Mr. Gent and met him at the New York office. I asked

him —. Mr. Bennett said, “There is Mr. Gent now. You go into

the side room and have a talk with him,” and we went into the side

room and IJ told this was a fearful state that things wasin; that I have

partly given up my other business and attending to the cerealine,

und I say the state it is in now Iam going to lose all my trade,and I

told him that they would certainly have been sued by Mr. Stafs, of

Newark, if it hadn’t been for me settling it, and 1 wouldn’t undertake

to sell any of their goods as long as it was in that kind ofstvle. “And,”

says I, “ you must try and get better goods than this.” He says,

“ Well, we cannot get any better corn in our section of the country ;

the corn is all frost-bitten.” Says I, “ You mustn’t send it out;

it won’t do.” Says I, “I can’t sell that and I won’t sell it.”

He says, “ Well, we are able to run our business without

you.” “And, well,” says [, “it is none of my business, your

running it, and everybody is complaining.” “ Well,” he says, “ Mr.

Licht, we will attend to our business and you will attend to yours.”

Says I, “All right,” and I left him. On about some time in Octo-

ber I saw beer in Mr. Kiefer’s place. I do not know when it was

62

made.

30 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

On cross-examination by counsel for defendants - testified as fol-

lows:

Q. When was it that you quitted the employment of Gaff, Gent

& Thomas?’

A. After they lad made this bad goods. I think it was the middle

of July. I had not stopped working for them when I saw Mr. Gent in

the office at No. 1 Front street. I did not work for them after I had

that conversation with Mr. Gent which I just now described. I

quitted there then. That wasthereason. When I went to Indiana

I went to Terre Haute and stopped to see friends and I come back,

and I think it was three or four days after that that I had this con-

versation with Mr. Gent. IT have never attempted to obtain a patent

on the making of this kind of goods—not of their kind of goods.

Q). Oh, not their kind of goods—I mean a patent for goods gen-

erally similar to this cerealine from some kind of corn?

A. Corned goods for brewers’ use. 1 obtained that patent some

time after I left, after I was down to Indiana. Ihave had it in view

before I ever saw them. I[ had no talk about it with Mr. Gent or

Mr. Thomas. I said nothing to any of the people in their employ

about it. I went into the mill, not until I was asked. I had no

other purpose in going to Indiana other than reporting about this

meal. I mentioned no other motive to Mr. Thomas or Mr. Gent.

(). (Showing witness sample of meal). This meal that you speak of

is — it is the general character of it, isn’t it?

. That is the char: acter of the cerealine, as they call it; yes, sir.

@ Is that a good article? |

Well, if it was all like that it would be good, yes—yes, that it

| Bis

(). These defects that you found in it—how would it look ?

It would have these black spots in it, decayed kernels, and the

corn Would look a different shade; it wouldn’t look bright when you

looked over it; it would look dark, like chalk or lime. The lumps

come in after you send it from the mill; they get itin by the

63 goods not beingsound ; it sweats. These goods, if it is properly

kiln-dried and sound goods, they will not sweat any more

after that. Goods decayed in ripening, after it is decayed in that

way, 1t will sweat; the sweating will commence after they pack it.

I don’t know how this was packed that I sold. They were put in

bags—large sacks. I should judge some bags had ninety and some

a hundred pounds; [am not sure; they had different size bags ;

the bag was not the ordinary meal bag; they was extra bags made

on purpose for that, tied up at the mouth; I suppose they were

shipped in that way frem the mill; I didn’t see them, but I suppose

the goods came in them. If the bags got wet it would spoil the

cerealine ; it would turn it into lumps, and also spoil it as far as it

went, but the other part w vuld be sound, just as far as the wet would

go, like a barrel of flour or any other goods. After I see the goods

come back from those parties (his customers) and examined it, then

I discovered the shade of brightness and the dullness ; then I could

tell, but I couldn’t tell before. In the course of my business I take

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. ol

orders and it would be shipped to those parties and they might re-

turn it and then I saw it. I think one or two cart-loads were re-

turned to me from, I think, fourcustomers. I only know Mr. Stafs,

Newark, New Jersey, and Freeman Greaves, and some others, but I

can't think of theirnames. I returned them back to the firm. The

brewers shipped them back to the firm; they wouldn’t pay for them.

I went to see them and they threatened to commence suit, and as |

sold the goods myself for the firm I told them that it w ould put me

in trouble. That is the only reason they didn’t commerce suit.

When I came’back my son told me—he says, “ Father, there is some

trouble; we have sent these goods to Newark and they have sent so

much back.” I went to see these parties to see what I could doand

keep my trade with them.

QQ. Were you authorized to make collections and did you make

collections for goods sold ?

A. For whom ?

(). For Gaff, Gent & Thomas.

A. No, sir; for my own goods. I bought right out and sold to

them. ‘These goods are bought right out by me and sold to these

parties. It was my own trade before | came to be outforthem. ‘The

brewers shipped the goods back to Gaff, Gent & Thomas, New York.

(. What became ‘of your trade with regard to Gaff, Gent &

Thomas in the purchase of those goods if they were yours ?

A. It went up in a balloon, as the boys say. I did not

64 pay for those goods that the Newark men returned. The

cerealine is made of white corn. I don’t know where it is

grown. There is a great deal of white corn down South, very fine.

| know the distinetion between white corn and yellowcorn. Inthe

Kast and Indiana they grow white corn. I saw white corn in Indi-

ana when I went out there. I saw the corn they shipped me. I have

not seen it to any extent. Mr: Thomas and Mr. Gent told me it was

the corn grown in their section of the country. It must have been

corn of the growth of the year before that they shipped me. I don’t

know anything about it. It must have been the year before : it was

what was called late white corn. I didn’t see any yellow corn about it.

I seen four or five cart-loads of corn on the truck, I think. This

corn was shelled when I saw it. I seen the corn in the shoot in the

mill and held my hand in the shoot and took out a handful and

examined it. I saw black corn in it all shrunk up. The corn that

I examined was, presumably, the same general character of the corn

they were manufacturing. All I seen was corn that was almost

shrunk and naturally corn that gets ripe. I noticed that was corn

that was shrunk, because they told me in the mill the night before,

and I looked at it and I found the corn shrunk close and the biack

kernels in the corn, and they said they couldn’t make no better

goods out of it. They told methat at the mill that night. The

miller and superintendent in the place told me that.

Counsel for defendants moves to have all this stricken out.

(Motion overruled ; defendants except.)

Ce a Lake 55 iis acne lett teeta

oe

4 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

©. You don’t know whether or not the cause of that corn shrink-

ing was because it was frost-bitten in the milk ?

A. No; experts on corn vould, I think, tell corn that had been frozen

in the milk. I don’t know what an ordinary observer could do. I

could. I seen the difference between that and the corn that was

frozen. I think the milling of that corn that I saw there would be

different from other corn that wacn’t shrunk.

Q. Can you tell me whether or not shrunken corn, such as you

saw, would make, if it was hulled and made as this is (referring to

sample)—would it make a milling that would resemble that, or

would it not?

A. It would make an article like that, but, as I have said before,

it would have a dull cast, and there would be black specks in it,

and they can’t sift it out, and I found that in it.

65 (). You desire to have the jury understand that if there were

black specks in this there would be black specks in it?

A. Yes; and there would be bad corn in it, and if it would be

made of bad corn it wouldn’t have that bright cast; if it wasn’t

made of bad corn it wouldn’t have black specks In it.

(. How is this done?

A. Well, you might go to work and | mix in that now something

black and thoroughly mix it, and you could hardly tell it—only by

having the two samples together to show the brightness.’

QQ. You mean that you could mix something black, as gunpowder,

with that and we couldn’t tell it was made of bad corn ?

A. If that corn was what I eall dull cast and the black was in I

could tell it. I haven’t said I was exactly a chemist, but every

brewer ought to be a chemist. [I am a pretty good. brewer; make

good beer.

Q. What I want to knew is if there is any chemical difference be-

tween this meal and this corn here (showing a sample of corn).

A. Well, one is what breaks off fine and the other is coarse; there

is none.

Q. Take this corn that you saw made into cerealine; would there

be any chemical difference between it and the other ordinary cereal-

ine, such as you had been selling, if that corn sack, as you saw there,

was made into cerealine with the black specks in it?

A. How could you get them out; can you tell me? You would

have to pick them out; you can’t do it.

The Court: He wants to know whether the shriveled kernels

Ww ould show.

A. If you show this to the jury and if I kad the other you w ouldn’t

see that brightness on it; you see, it would be what we eall glossy ;

the other would be dull looking. It was made out of the shrunken

corn and would be of a dull eastand would look as a shade of either

ashes—white ashes or chalk or lime milk. It would have that dull-

ness. By being an expert a person could tell that these were

66 good. Any brewer can’t tell, because there is not every

brewer that knows about the coods being snowy or the shade

of those casts, because they don’t ‘understand it. If I hadn’t been

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. Oo

through milling goods and milling different kinds before I went

into these goods I would have been iost, but I have been all through

that; linseed oil works, and I have been through that.

Q. You could tell it was good ? |

A. Well, other people could tell if they knew. In making beer

we use hops and malt and corn products, or we use rice; we use

wheat; we use malt wheat. The malt does not go into a fermenting

tub right away; not until we get done with it in other stages. We

commence to make our mash about two or three o’clock in the

morning—we get up early—and then we start brewing with our

malt,and a certain quantity of that in it

Q. What do you do when you brew the malt?

A. We put in the malt and then we put in this corn product with

it, and we keep on mashing and run our temperature until we

get :

Q. What temperature do you take it to?

A. There is no one who would like to expose their way of doing.

We take it to fifty-five or sixty degrees temperature. We keep mash-

ing all the time. By mashing I mean stirring around in acircular

tub. When it reaches 55 or 60 degrees we let it stand still an hour

or so and get our breakfast. Then we go to work; you should let

it stand, and then draw it off into a kettle, at fifty-five or sixty de-

grees temperature. We draw it in the kettle, and then we boil it

up. You can’t get it any higher than boiling point; you boil it,

and then it is boiled. Then we draw it off in the mash tub and

put it in the kettle, and we don’t take it off until we get done with

it. We draw it off and run it in the mash tub and put it in the

patent cooler, and then we take it in the fermenting tub. We get it

in a certain percentage of the gravity of sugar or sweetness, and

then we take it out when we get it to that per cent. that we

67. want it, either 13 or 20 degrees, Reaumur scale, then we take

it from that and put it on the cooler. In the fermenter we

put yeast in it; ferment it with yeast. In 48 hours we will see the

commencement of the fermentation started, and then it will last

according to the temperature or coldness of the weather or the roomt

it will then last, maybe, from eight, ten, or twelve hours before I

goes in what we call kreisin; then, after the kreisin, we want to put

in all that kreisin, all that ferment ; we use it to liven up this other

beer. After we get fermenting in that tub we have to wait until the

yeast falls back ; we call it the after fermentation. After the yeast

falls back the beer comes as black as ink on top. When itis refined

then we draw it off in what we call rest casks, and it lays there to

give it age. It staysthere from a month to two months and sume

as high as three months. Then we take this back to what we call a

refining cask, and then we put a certain quantity of this kreisin in

it; it is then fermented; then we ferment that beer and let it work

out of the bing, and then, in 48 hours afterwards, we draw it off in

kegs and send it out tothe customers. During this period of gesta-

tion too cold would make it go slow, and too hot hurries it on a little

too fast. You want to be careful that everything is clean and also

- 3) —

o—33 i

ot RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

that you rack it off at certain times, when the beer has got to a cer-

tain pitch. )

sy the Court:

Q. What will happen if the fermentation stops at any time ?

A. It must stop, or else we will never get beer. It must refine,

and when it gets through its fermentation it stops; and if it has an

after fermentation we don’t know when it will stop. It will never

make beer, maybe. I have seen that done where the fermentation

was stopped, and I saw the next fermentation coine up and spoil the

whole beer; there is many reasons for that second fermentation ;

inferior goods sometimes does it, and nothing else as I know

68 of, except the yeast might be affected; isingiass has some-

thing to do with refining it, when we put it on ship casks ;

sometimes they put it in; finish it with isinglass. Heat would be

produced by fermentation ; I have known this. We have went to

work and put beer into bottles, and got it to a boiling heat, and got

it cooled down to ship, and it did not spoil it. They boil it to-day

that way in New York. It might spoil it if it were not heated bya

second fermentation.

On the redirect examination (by plaintiff’s counsel) he testified :

—. What effect would frost have on unripe corn?

A. It would spoil the beer; it would spoil the fermentation of the

beer and it wouldn’t refine. I know of that and other cases it was

the same way ; when it is in the milky stage and is cracked it would

not refine; that is what I said before. I never detected any differ-

ence in the luster of this cerealine or its condition until after’my

customers began to return their product.

Q. Now, could any one but an expert detect tle difference in the

shade ? |

A. Not well.

On recross-examination (by counsel for defendants) he testified :

Q. You say that frost-bitten corn will injure the corn, or injure it

so that it will hurt the beer?

A. I found that out since; yes, sir; Ido. Cerealine from ripe

grain will not have any effect on the beer. If in the milk in the

field it gets frost-bitten it hurts the corn. You can’t freeze corn or

any cereal that you have when it is ripe. Put in as much frost as

you like and it won't hurt it. I have learned that since by practis-

ing on it—on white corn and wheat. I done it for the purpose to

see what was in it. [am practising on different occasions. It had

no reference to this case. I have took corn that wasn’t ripened—un-

ripe corn that was frost-bitten ; it was shrunk, and I foufid that it

acted that way; the distinction between ripe and unripe corn

69 is that the unripe corn is in the milk, and I took unripe corn ;

I don’t know from whom I took it. I obtained two or three or

four ears; it was in the husk. I found out that corn that was in the

husk that was frozen would injure beer. I ground it upand brewed it.

I made theexperiment eight or nine months ago; it was the curren

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 35

year’s corn that] used. When I tried it the kernel looked like ears

of pop-corn that was shrunk, that you have seen dried. It wasn’t

frozen when [ got it. The parties that I bought it of told me it

wasn't frozen, and it looked like that corn I saw down there. You

cannot shell corn that has-been frozen on the cob right away. |

shelled this and ground it in a small mill after I had made the

meal

Q. What did you do then ?

A. I used it—brewed it.. This was the last part of the summer.

It was last fall’s corn that I was using. When I got the beer it

didn’t refine. There is nothing that goes in the keg to refine beer.

Isinglass is used to hurry it up a little; that assists to ‘refine it. That

is not used extensively among brewers. We use, maybe, a pound or

two a year. Wealso use what is called shavings in refining; they

are made of birch or beech wood and the sap boiled out perfectly

clear. I didn’t use anything in my ——— for refining. I

wanted nature to refine it the same as it always would; it was only

asmallsample. I was employed by the defendants on a commis-

sion. The agreemert I madé with them was to travel for ten dol-

lars a day and all traveling expenses, and five per cent. under the

first lot of goods that I sold to the parties for the future. The ar-

rangement was satisfactory to me, and I guess it was satisfactory to

them. I sold a good deal of goods up to this fall-out came, and |

told them I wouldn’t sell that goods. I was doing very well; I was

selling a good many goods. I told them I wouldn’t sell any more

of them goods under any consideration. T quit them in soliciting for

them any further, and Mr. Gent sent mea letter that he didn’t wish

me to intercede for any more custom under the commission.

70 I went over there and told them I didn’t want to solicit for

any more custom on the goods on a commission, as the

goods were not good. I had received that letter from Mr. Gent

before I went over there, but I told him a few days before that I

wouldn’t sellany more. His (Mr. Gent’s) book-keeper wrote that he

didn’t wish me to intercede for any more custom under the com-

mission. I got that letter in reference to going back there the same

day. Inthe letter Mr. Gent said he did not want me to solicit any

more trade under the agreement. I didn’t get only ten dollars on

the road. I was not discharged from their employ because my

employment didn’t pay expenses. I think it must have been

about two months after that, two months and a half after that

(January 30th), that I heard that Kiefer in this case was getting

bad goods. I think it was some time in October that I first heard

that he had any difficulty.

Q. Whom have you been employed by since; what brewer ?

A. No brewer; I have sold hops and malts, the same as | did

before. I had this trade previous to theirs, but they wanted me to

travel, and even wanted me to go Europe, and I wouldn't; they

wanted afterwards—Mr. Gent came to me and Mr. Thomas, and—

no; I mean Mr. Bennett and Mr. Thomas—wanted me to fix a

price—that was shortly before I went to Buffalo—and state what I

would travel for them altogether for.

36 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

Joun Ket, being duly sworn and examined as a witness for the

plaintiff, testifies :

I live at 101 -street, Brooklyn. I knew Gaff, Gent & Thomas

in 1883. I had business dealings with them. I am not a

brewer. I have dealings with brewers. I sold goods of Gaff, Gent

& Thomas; I sell to-day. I buy of Gaff, Gent & Thomas and

resell to brewers. I sold cerealine from them, late in the spring of

1883,.0n one occasion that was returned to me by a brewer. It

wasn’t altogether damaged, but it wasn’t fit for brewing. I spoke

to Mr. Gent about it, and told him it was damaged. I think that

was in the month of Aprii, 1888. Mr. Gent says he didn’t want

the brewers to use it; we should take it all back.

71 Q. You had another quantity returned to you ?

A. This was not returned—the other quantity. I gota

branch store in Harlem, and this was lightered up by the light ter,

and got some damaged by another lighter, by water; and when I

got it in my store [| found m yself it wasn’t sound ; it was damaged

by water. There was no other damage, only water. That that the

brewers returned in April was all kind of wet.

On cross-examination by counsel for defendants he testified

follows :

I have had business dealings with the firm of Gaff, Gent &

Thomas since 1882... This shipment of cerealine that I refer to was

received by me about the month of April; I couldn’t say posi-

tively what date. It was returned by a customer of mine. I am

simply a commission merchant. I sold them a car-load of about

14 tons. The reason the car-load was returned was because it got

hot. It was cerealine. I ordered it from the mill for the brewer,

and I carted it with my own trucks to the brewery, but 1 didn’t

receive it in my store; it went directly to the brewer. Those people

had those goods about one day before they returned them. When

they returned them I took them right back to Mr. Gent; he

told me I[ should take it back right away. I was in the habit of

selling goods to brewers for them. I went to the brewer myself,

and me and the owner of the brewery, we went all through and ex-

amined all the bags, and I told him right away, says I myself,

“That isn’t fit to use;” and so he says, “Will you take them right

away as soon as possible? I don’t want to keep them.” It didn’t

take me long to find out that it was defective. These brewers had

not used any of it in the manufacture of beer. They found out it

was bad as soon as they took hold of it.

Q. Do corn goods of all kinds and cerealine generally frequently

become hot from being wet? . ;

(Objected to as immaterial and incompetent ; shiontion over:

ruled ; plaintiff excepts.)

A. Yes, sir; it gets hot very quick. When it gets hot it is not

fit for brewing use. The brewer that returned this was not a party

to this suit.

5 ed pet SPEAR DA RET By SEER at SOA aE eT RO,

4) A

=~ SP &

RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER. 37

72 On redirect examination by counsel for the plaintiff he

testified :

Q. When you examined this meal in wei how was its condi-

tion in regard to being lumpy? :

A. It wasn’t lumpy at all; it was hot. I could feel that it

hot. It hadn’t a musty smell, but as soon as it gets cool the nell

would be there.

ConnaD AMENT, being duly sworn and examined as a witness for

the plaintiff, testifies:

I live at No. 9 North West street, Syracuse; am a brewer; am

brewing now for the Greenway Brewing Company, Syracuse; am a

practical brewer; have been so the last nine years. I worked for

Mr. Kiefer in 1883; began to work for him latter part of January

or first part of F ebruary. I worked for him during the months of

April, May, June, and July, 1883. I ordered this cerealine in the

office.

Q. Did you ever order any from Bennett himself?

A.. I was there in the office once. I told him to send me over

cerealine. I was sent over by the boss to go over to Bennett’s office,

at No. 1 Front street, and order some cerealine.. I was sent over

once. I spoke to Bennett once, and I says, “The cerealine don’t

look quite as good as it ought to be.” He says, “It is just as good

as ever; the color don’t make any difference if the color don’t look

quite as good as it used to.” That is what he said. He says it’s

first-class quality; the best he could get, he told me. I told him I

was making beer with it. I saw all that cere ealine, more or less, that

came in during this period. I[ couldn’t see anything the matter

with it first off for quite awhile. I am the man who Mr. Kiefer

spoke about who. discovered the lump there on the third of July.

That was the last quantity of cerealine that I had.

Q. Was any of that purchase used ?

A. Not of the cerealine. There was some bags; the bigger bags

was the meal and the cerealine was the smaller bags. The smaller

bags were bad; the coarse—the coarse stuff—that was what had the

lumps in it. I took a piece and went in the office and showed it to

Mr. Kiefer and said that was the only reason the beer was bad.

During the time that we mixed this cerealine we were using malt,

cerealine, and hops to make beer. The malt was very good Canada

malt.. We had some Western malt that was_ first-class

73 quality ; it was first-class malt. I noticed the difficulty in

the cellar the first week in June. I couldn’t tell then what

was the matter. Mr. Bennett came over to see Mr. Kiefer after that.

I saw him there. The effect of this cerealine on the beer in June

was that it couldn’t get the beer clear any more; couldn’t get it

quite so fine as it ought to have beer—clear; didn’ t get so fine any

more as I used to have. It looked muddy and thick.

Q. Did you notice that first in the old beer that you mixed the

new beer with ?

A. No, sir.

38 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

Q. Which did you notice it in first ? .

A. After I had found this young beer I tried it first to find out

whether it is clear or not, and after I tried the old beer and the new

one I couldn’t get clear I tried my best to find out what was the

matter, but I couldn’t; there was nothing the matter with the hops

nor the meal. I think it was the second or third of July that I]

found this cerealine in that lumpy condition; after that I didn’t use

anything but hops and malt.

Q. Was anything the matter with the beer after that?

A. Well, after the young beer I left on one side, but I come with

the other beer all right then. I began then to mix this new I made

after the third of July with the old beer that was made, and that

was all right. I didn’t have any more trouble with the beer as

long as I stayed there. I quit there the latter part of July, I think,

in 1885.

Counsel for defendants:

Q. You quit along in July after this occurred, during that same

month ?

A. Yes.

Counsel for plaintiff:

Q. You know what the effect of immature grain in making mash

is, do you not—unripe grain? pete

A. I ean’t make out what that means; I seen corn before already

that had been frost-bitten; the kernel wasn’t quite so full as the

other; it didn’t look right. [am a malster and [ know how to pre-

pare and make malt, and I know the different processes through

which the grain goes. In making and preparing malt it is neces-

sary to have the very best matured grain that can possibly be ob-

tained.

Q. This stuff supplies the place of malt, does it not ?

A. Yes, sir; you cannot make malt fit to use in the brewing of

lager beer out of unripe grain.

74 Q. Does frost-bitten corn color it—color the germ? Would

frost-bitten corn sprout ?

A. Any corn alive, it is Just as good as anything else, and if it’s

frosted it is dead, and you cannot make any more. It is impossible

to make beer out of grain killed by the frost. If you get grain for

making beer mixed w vith bad malt or unripe grain or even cerealine

] presume you can never get a beer—you can never make a beer. I

used to try my best, but couldn't geta beer. The fermentation in

the yeast spoiled it first off—not in the first brewing, but after you

have.had it three or four times—but every time you take the yeast

out the yeast gets poorer every time. After you use it three or four

times then you can’t use the yeastany more; you have tothrow it away.

These are only the two pr mbna ingredients used in making of lager

beer—hops and malt; the cerealine is a substitute for malt. © This

cerealine that was delivered to us before it was bad did not have the

same qualities as malt. Cerealine that had been made from corn

that had been killed by the frost in the milk would not brew no good

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. i

lager beer; it would not brew lager beer that was fit to drink—that

we could sell.

Q. What effect would it have upon a brewing ; do y you know?

A. You can’t get no beer; you can’t get anything out of it.

(. You mean to say those qualities which cerealine supplies in

beer would be absent from the beer—would be missing ?

A. Well, sugar and starch. Sugar and starch is necessary to

brew lager beer; you cannot brew lager beer without it. I saw the

lager beer that was brewed about in June; that was spoiled; must

have had four thousand barrels or over. I didn’t make so much

beer out of this corn; I couldn’t make so much out of it; got less

beer, but I couldn’t make nice beer. The matter with this beer

was that I got a nice beer and it didn’t smell the way it ought to;

had a kind of a musky, sticky smell. The first I discovered any-

thing was the matter with the cerealine was when I discovered this

lumpy stuff; before that I couldn’t tell that anything was the matter

with this cerealine. I used it about eight months, [ guess; some-

thing like that. Previous to this we had very good success, and the

beer had been improved. I,haven’t been with Mr. Kiefer for over

two years.

(ie On cross-examination by counsel for defendants he testified

(. How long does it take to make a brewing of beer, to have it:

ready for use ? | |

A. Two months, three months; steck lager stands to be four and

five months old ; sometimes longer.

Q. Then Mr. Kiefer didn’t make a brewing of beer ready for use

from the meal of the 3d of July until the time you left his employ ?

A. Oh, yes; he made it every day, right along. I made the

kreisin out of hops and malt, and I made it clear out of old stock.

For cooling, Mr. Kiefer had an ice machine, and ice besides. Some-

times he bought his ice from the Knickerbockers and sometimes

from the Ridgewoods. The last winter we had the ice from the

Ridgewoods. We had to have ice regular, right along. Mr. Kiefer

did not, as I know of, buy an unusually large quantity of ice be-

tween the 3d day of April and the 3d of July, 1883. He didn’t

have any trouble at all with his ice cooling apparatus. That is the

reason he kept on ice all the time. - The ice machine wasn’t strong

enough to cool all the cellars. His beer cellers did not become over-

heated during that time, I know a gentleman named Schalk; |

had a conversation with him over in the office of Gaff, Gent &

Thomas. I did not in that conversation say to Mr. Schalk that Mr.

Kiefer’s ice machine had broken down about this time, and that his

beer cellers went to about fifteen degrees Reaumur, and that the beer

was soured on that account. Frank Newman was not present at

this conversation with Mr. Schalk ; Bennett was present. I saw Mr.

Schalk in Syracuse after that, and had a conversation with him.

He brought a summons up there ; that is all. He wanted me to

sign it. At first he brought a summons and wanted me to sign it,

and I says I can’t sign it—to go to court—because it wasn’t true.

When I was over in Bennett’s office we had been speaking about

40 RACHEL S$. GAFF ET AL. VS. HENRY KIEFER.

cerealine. The cerealine don’t look quite so good as it used to be

and after that [ had them lumps. I says that must be them lumps

spoiled my beer. ‘That. is what I told him (Schalk) then. I know

no Mr. Newman. Mr. Bennett is a pretty tall man, with long

whiskers. I know Mr. Bennett; I had many a drink with him. I

do not know Mr. Stoddard. [do not know Mr. Lillis. I know our

heer was bad about the middle of June; I tried all the time to find

out the reason. I could find out nothing at all; I looked all

76. over. I didn’t have any trouble before the first of June. I

used these goods for eight months before ; about the latter

part of May or first part of June I found out my beer was getting

worse every day.

(). Now, up to the middle of June all the difference you noticed

was a little difficulty in the latter part of May or first of June that

didn’t amount to anything; isn’t that so?

A. That didn’t amount to much.

(). That beer you sold ?

A. Yes, sir. :

Q. And that beer was accepted by your customers and never re-

turned ?

A. Not in May and first part of June.

(). No complaints were ever made about that?

A. Sometimes. they commence to make complaints, too, but it

didn’t amount to nothing. From the first of April to the middle of

June we used Gaff, Gent and Thomas’ goods. We examined them

as ‘we put them into the mash ; we didn’t have any serious trouble

until the middle of June. I found the goods good up to the middle

of June. I only used a little of. this what we call kreisin, or new

beer, with the old beer. The more I[ used of this new beer the worse

mv beer got. |

Q. This new beer that you used about the middle of June that

spoiled the old beer that you had on hand, about what day, as near

as you can fix the day, was that brewing commenced ?

A. It was made about the first of June; made about May 25th or

first of June; something like that. I noticed a little difference in

my beer in the latter part of May, and finally it got to be bad. —

By Mr. Moutton :

Q. When was the new beer made which finally made it utterly

bad ? | |

A. About the latter part of May; about the 25th or 26th.

Usually, as we are brewing our beer, as we are getting it ready to

send out to customers, we usually taste it to see if it is going all

right. If it was bad I would ascertain it in the taste. I know how

my beer tastes before I send it to my customers. I tasted it (this

beer), but I had no other to send out. I knew it was bad. I knew

our beer was bad before our customers commenced complaining.

The latter part of May I found out my beer changed. The difficulty

in the latter part of May was slight; we didn’t have any complaints

about that; still the beer was a little changed. This beer that

damaged the old beer that I referred to was made in the latter part

- oe Sete

eet MBP ?

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. | 41

of May; we brew every day in our brewery. We generally got two

loads a week, sometimes three loads a week, of cerealine from Gaff,

Gent & Thomas; if we got a load on Monday we would have it

brewed up before Thursday, and if we got a load on Thursday we

would have it brewed up before the next Monday. Our beer had

been all right up to the 25th of May. We had used Gaff, Gent &

Thomas’ goods in brewing right along up to that time. We had

used up all the goods that we had bought between the 3d of

wi April and the 25th of May, and we were buying more goods

to use. We examined these goods before we put them in on

the 25th of May, and we didn’t discover. any difficulty. The

cerealine had a little different color; didn’t look quite as white;

could see a little speck in the corn once and awhile. I had not

always seen these black specks in the grain.

Q. You didn’t see any black spots between the first of April and

the 25th of May, until you made that brewing ?

A. Yes; then it about commenced, or a few days later. By ex-

amining the beer after it is brewed you cannot tell what made it

bad, if it is bad.

Q. In this beer that you manufactured on the 25th of May did

you also use malt and hops?

A. Yes; latter part of it.

—. How long had Mr. Kiefer been in the brewing business? Do

you know that?

A. Iam fourteen years in this country, and ever since he is in

that business. I ama foreman nine years. [am nine years in that

brewery as foreman. I have been with the Greenway Brewing Com-

pany, Syracuse, New York, since I left Mr. Kiefer. I went from

here to Syracuse to work there, and I am there vet. We sometimes

call the voung beer kreisin; the old beer we call stock lager.

Q. I want to know if that is what you mentioned as kreisin in

the young beer.

A. Yes, sir. The young beer or kreisin is manufactured from

hops and malt and cerealine. We use two-thirds malt and one-

third cerealine—from one-quarter to one-third cerealine. Old beer

is also made out of hops, malt, and part of cerealine. We generally

keep the stock beer- four or five or six months. Malt will make

yeast without cerealine, and cerealine will not make yeast without

malt. You cannot make yeast of cerealine without any other in-

gredients at all; you have got to have malt with it, and when we

talk about malt we mean barley malt. Hops are used for the pur-

pose of flavoring the beer. You have got to have hops to make

beer bitter. :

Q. Is that all?

A. The hops got to help clear the beer.

By Mr. Mourton: |

Q. Do hops do anything else besides make the beer bitter ?

A. No, sir; by fermenting the beer it has got to help with it.

Q. The hops help to ferment the beer ?

A. Yes, sir; it has got to be fermented. I know what yeast is:

6—337

A eA RE Ri et sl aera apes eae ar ome

42 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

it is some flour and mixed with something—just like the baker

so white, but not allthe time. That is the best explanation that I

‘an give in English. I was the brewer in that cellar, present per-

sonally all the time. We have a heaumur thermometer in every

cellar, and the temperature was kept at four or five degrees—

78 it was five degrees, say. It sometimes went as high as six

and a half. It didn’t keep six and a half twenty-four

hours. The ice machine was never stopped working. We put ice

in every day. Cerealine is made of white corn starch and made

out of white corn, starch, and sugar. ‘I can’t tell you exactly how

much sugar there is in it; 1 don’t know. I have been a brewer

nine years. During the process of manufacture the starch is turned

into sugar. It is turned into sugar in the mashing vat; then it 1s

run off in that form. ‘hetest by which we tell ifit is all turned into

sugar or not is the saccharonometer; also after I got my kettle I

try my beer; you can see by the beer; you can find out by the

scale. | :

(). If there be any starch will the starch all turn in the solution

in the mash tub without further trouble ?

A. No, SIT;

(). Then how can you tell whether the starch is all out and the

flour is all converted into sugar? 3

A. I tries my beer by scale, by saccharonometer. I can tell by

looking at the grain. I can tell by nothing else besides looking at

the grain and the saccharonometer.

(). Supposing the starch is not all converted into sugar, you con-

vert the starch into sugar by a certain heat, don’t you?

A. Yes; if some of the starch goes into the beer before we get

sugar the beer will not come clear, but for that matier we will boil

it before we ferment it. We boil the beer, and after it is boiled so

long the beer got to get clear. The beer wants to be fined in

kettles. The yeast is formed in the mash tub. The yeast comes on

the bottom of the lager beer; then we draw off the fluid and leave

the yeast there and it forms a nucleus for a new drawing; that

yeast looks something like soft scapor mush. We take it out every

time and clean the tub and put it in little tubs, and as soon as we

get this brewing done we use this for the next. The tubs are cleaned

with water and brush. About 14 degrees Reaumur would be about

60 Fahrenheit. I bave made the test myself. I don’t know what

albumen is.

rd

| 79 Q. Do you know anything about the term at all ?

A. If you tell me in German.

Q. You know what that is, do you? ;

A. Yes, sir.

(. Is that found in the yeast?

A. No; it first makes its appearance in the fermenting tub.

(. What becomes of it?

A. It has got to be through the fermenting tub. It has got to get

out in the beer to make the yeast. It makes the yeast. It is in

| : the yeast, and the yeast is a growing plant; that is what is yeast—

mixes his bread, but it don’t look quite so white; sometimes it looks’

“ _

~ 4 i A

ta aman mene ~il

es

“eae nee Rng ggg PH ce ep aes

RACHEL S. GAFF ET AL. VS. HENRY KIEF2R. 48

albumen. If we were to raise the temperature of the beer one

degree Reaumur it wouldn’t have any effect at all, because it can’t

be kept up; if it were to go up six degrees in 24 hours it wouldn’t

affect the beer at all; it wouldn’t affect it if it got up to seven de-

grees; might affect it if it gets up as bigh as eight degrees.

I know when the starch is converted into sugar. I don’t

know what diastase is. The temperature in the cellar during this

time runs from four and one-half to six. I know what dextrime is;

it is right in the beer. In fermenting the dextrime has got some-

thing to do with the fermenting; dextrine has to help build the

veast or make the yeast also. To fine the beer we used isinglass,

beech, and birch shavings and new leather; if the shavings were

unclean that would spoil the beer; it would get a different color

and smell bad; when our yeast gets a little bad we go and

change; get some yeast somewhere else, from some other brewer.

Out of forty barrels I generally get as much as four quarts of yeast ;

if there is anything the matter with the yeast and we do not help it

the yeast will die. We purify the yeast by washing it; if that was

not promptly done the beer wouldn’t work as soon as it ought to;

it takes longer time to clear; it wouldn’t spoil the beer. If the

yeast is bad we can’t use it at all; it will spoil the beer; vou have

got to keep the yeast cold; if it is heated too hot you won’t

SO have any veast any more. In spite of all we can do always

yeast carries into the voung beer, and there is generally some

left in the stock beer; can’t make any beer without yeast. Hops

and malt and cerealine make the yeast. After the 3d of July, if |

am not mistaken, we got yeast from Hughes’ brewery; I sent the

driver for it. It is over two years, and I can’t remember exactly

where we got it. As soon as I didn’t use the cerealine any more |

got yeast. I found lumps in that load I got on the 5d of July and

[ never used cerealine after that. I threw the old yeast away; I

told the man to do it, and saw him do it, too. You can use yeast

five or six times sometimes; you can use it five or six months from

one tub into another, when it keeps all right; I done it often. I

did not use this yeast six months prior to throwing it away, but you

can do it. I changed my yeast two or three months before the 3d of

July. I seen in the paper that there was a fire in that house in Oc-

tober, 1884. I ain’t been there; I don’t know anything about the

beer that was there at that time.

Q. Did vou detect in running off this mash in the fermenting tub

or inany of these processes, through the kettle or through the mash

tub to the kettle, or any of those places—did you examine to see

whether there was any odor connected with it at all?

A. I did: ves: from the mash right in the kettle. I couldn't

smell anything. If 1 could tell I wouldn’t mix it with my beer. I

could tell by simply smelling, without any difficulty. I didn’t de-

tect anything wrong that I-had put in the stock beer during this

time in the smell. It was my business to know whether there was

anything wrong with it or not. If there was anything wrong I de-

tected it in the smell. If I did detect it I wouldn’t use it. When I

mixed the young beer with the stock beer I couldn't get the beer

44 RACHEL S. GAFF ET AL. VS. HENRY KIER.EF

clear any more. I[ leave it two or three weeks and couldn’t get the .

>

beer clear any more. | leave it two or three weeks and couldn’t get

‘itclear. So long as I left it in that kreisin cask it got a kind

8] of queer taste and I couldn’t tell what it came from. Mr.

Kieferand myse!f huda row and I lefthim. We had trouble

because I couldn’t get the beer clear. He wanted me to take the

young taste away from it and | couldn’t do that, of covrse. It had

a young taste and he wanted me to take the young taste from it.

The difficulty that we had was about the making of the beer. [I left

because I couldn’t get that beer old enough in time. In one week I

couldn’t get beer a year oid.

On redirect by plaintiff’s counsel he testified :

I am a German by birth, and was thirty-three years old in July.

I don’t speak the English language and I don’t understand it very

well. I am nota chemist, and, in English, I don’t understand chem-

ical terms when they are spoken to me—that is, very little—and I

cannot express myself well in English. I have been engaged in a

brewery for nineteen years. I went from Kiefer’s to Svracuse. |

am a brewer there; foreman; have the same position there that I

had at Kiefer’s. We sell as much as fourteen or fifteen thousand

barrels of lager, besides ale. I have made good beer there; have

had no trouble with the beer, and for six years before this bad beer

at Kiefer’s I had no bad beer. I always succeeded in making good

beer. I did not tell Mr. Schalk the beer was injured by reason of

the ice machine getting out of order. Mr. Schalk is the son of the

brewer in Newark; his father used to have a brewery in Newark ;

I didn’t know him before. After I left Kiefer’s place I knew Schalk

was an agent of the defendants. I saw Schalk after I left Kiefer’s;

he was then in the employ of the defendants, at No. 1 Front street.

Schalk came to see me at Syracuse, and he talked to me about this

matter at No. 1 Front street. He hada paper made out and wanted

me to sign it, but I wouldn’t do so, because it was not the truth, and

I told him so.

Q. When did you tell him that the paper wasn’t true and in what

respect ? .

82 (Objected to; objection overruled ; defendants except.).

?

—. He wanted me to swear that I should say that the cellars went

up so high and nothing was wrong with the cerealine—that is, that

the temperature in the cellars went up so high. Isaid, I can’t do it;

there is no such thing. He said that if I would doit he would give

me a position and see me all right besides. I wouldn't go into that.

I said “ [ can’t sign my name to any such a paper as this.” -I went

over to the office with him and he showed me the paper. He said

he would get me a position in a brewery and see me all right about

some cash. ‘He didn’tsay how much cash. At No. 1 Front street they

had an office upstairs; just one stairshigh. I had been there before.

I met Mr. Bennett there, the manager of this company; I had seen

him there twice. The day that I saw Schalk, Bennett was there.

They both spoke to me and I answered them both. Bennett was

Pe 7

RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER. _. 45

present when I was asked to sign this paper. He was in hearing dis-

tance. He must have heard Schalk’s offer to me, because he was

sitting there and could hear it. He took part in the conversation.

sennett said he would see me all right if I would sign that paper.

I said, “I ain’t going to sign my name; I can’t do it.” This cerea-

line as it came to the brewery came in bags and there was a name

on the bags—a big round sign on it with the name of the company

whereit comes from. It had a “diamond ©” on it.

Counsel for defendants admits that diamond C means a prime

article.

We used ice every day in our cellars in addition to the ice machine.

@. Do you know whether at any time during that summer the

temperature in your cellar got so high as to injure your beer

(Objected to; objection sustained ; plaintiff excepts.)

83 On the recross-examination of witness (by counsel for de-

fendants) he testified :

Q. About this conversation that you had with Mr. Schalk in

Bennett’s presence. You say that Mr. Schalk came over to your

house? | :

A. Yes, sir; he was there three times, and he got me to come to

Bennett’s office; that was either the last day in July or the first

week in August; that was the same year that me and Mr. Kiefer

severed our connection. I was living in Brooklyn at the time Schalk

saw me, when I was working in Syracuse. I was living in Syracuse,

too. ee fetched me a subpoena once.

Q. Isn’t it a fact that in answer to that subpcena you went down

to Mr. Bennett’ s office ?

A. Yes, sir; after I was sitting in the court at two o’elock I went

Mr. Bennett’s office and demanded my return fare, and nobody

would give it to me. There was some men there who directed me

to some hotel, so I say I didn’t have any time to wait. I didn’t see

Mr. Schalk at that time, nor Mr. Bennett. |

ARCHIBALD Scott, being duly sworn and examined as a witness

for the plaintiff, testifies

QQ. What is your business ?

A. Ice dealer, and I was an ice dealer in 1883. I sold ice to Mr.

Kiefer during the warm weather; in the month of April, 1883,

$169.95 worth. (The witness is handed some bills.) The month of

May, 1885, he a 194,200 pounds. In June he had 112 tons 850

pounds. In July he had 212 tons 250 pounds.

By counsel for defendants:

Q. Just tell us what it was in April, if you please.

A. I haven’t got the April bill here, but the amount I got,

$169.98.

By pee for plaintiff :

Q. About, how much per ton?

46 RACHEL 8.-GAFF ET AI. VS. HENRY KIEFER.

A. $1.75 per ton was the charge. That was about 75 tons for

April, 100 tons for May, 112 tons for June, 212 tons for July, and in

August 173 tons 650 pounds. This ice was delivered at Mr. Kiefer’s

place of business, in Scholes street, at his brewery. We understood

that the ice was to help out the machine; Mr. Kiefer bought the ice

and paid for it. :

84 On the cross-examination (by counsel for defendants) he

testified :

Q. That is all you know about it?

A. Yes, sir; I don’t know what become of the beer. I know Mr.

Kiefer had an ice machine; he did not say anything to me about

the condition of it when he bought these goods; I knew nothing

about the ice machine; I was under the impression and heard that

the ice was to help thie ice machine. The principal part of our ice

was taken from the Hudson river; our ice is the purest quality; he

gets the best. The ice that we sell to breweries is the same as for

other purposes. |

FREDERICK Licut, recalled, and on further cross-examination (by.

counsel for defendants) he testified:

Q. [think I understood you to tell the jury, when you were on

the stand the other day, that you didn’t know anything about this

ease until October, 1883, this case of Kiefer against Gaff, Gent and

Thomas; do you remember whether vou told me that or not?

A. I think I did, but I think I didn’t know anything about it

until that time; I have not helped to promote this case nor to bring

it; when Mr. Kiefer asked me to come to his office I did. I did not

make affidavits to help this case ;‘I made an affidavit in Mr. Towns’

office; that was after the suit was commenced, I believe. Sometime

after the suit wis commenced [ called down to Mr. Towns’ office and

he wanted to know what I knew about it.

Q. How long was that with reference to your trip to Columbus,

Indiana? : 7

A. Phat was a good while. I couldn’t say; it might have been

six weeks, and might have been more. Mr. Kiefer came and saw

me and wanted to know if I was selling those goods; I told him no,

and he wanted to know what was the matter with them, and I told

him just what was the matter. Then he wanted me to come down

to his counsel and make an affidavit to that effect,and I did. [ gave

Mr. Kiefer no advice; I made only an affidavit. (Handing witness

an ear of corn.) I don’t know what makes that corn shrink at the

ends; if you will tell me where it comes from I will tell you what

ails it; if it is sweet corn it all shrinks that way. It is wlrite corn.

[can’t tell what ails corn unless I know where it grows. White

85 corn is different from Indiana corn or Southern corn. I can’t

tell what caused those shrinkages except I tell where it comes

from. If I see them black kernels in it then I may tell. Experts might

tell; they know all about the different parts where corn comes from.

Corn has a fixed number of rows on a cob, I believe, but the number

ithas Ican’texactly tell you; [have heard already over and over,and

“t

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 47

have seen it over and over, but I haven’t fixed my mind to it. I told

you that after I got the report from Buffalo or from Newark that I ex-

~amined the cerealine and found several spots in it. I found out the

black spots were from rotten kernels on the cob which went in which

I took down there at the mills. I examined the same cerealine in

New York, and goods that came back from pier 4 in the office.

Those black spots come from rotten kernels which had formed in the

ear of the corn before the cerealine was made. I have seen ccrealine

made down in their mill. They showed me what they were doing.

I seen it run, the corn grits. They steamed them through a conveyor

that runs down, and that is the way they showed me how they made

it. I did not see a fan mill or winnowing mill there. (Showing

witness sample.) This is some of the corn that Isaw there. I went

to the mills the evening | got there, before I saw Mr. Thomas. I

got out my patent about eight or nine months after that, after I

was down there.

. When did vou make the first ap plication for it?

By the Courr: How is that material ?

Q. Had you made an application for the patent when you went to

Columbus, Indiana? | |

A. No, sir; I hadn’t filed any paper. I made my first applica-

tion some time after; [ don’t know exactly the month or time. A

year afterwards | sought to put my goods on the market—several

months. I didn’t keep a record of it goers

Epwarpb M. Licut, being duly sworn and examined as a witness

for the plaintiff, testified :

Q. Do you know the defendants, Gaff, Gent & Thomas?

A. Yes, sir.

Q. Were you connected with them in any way in business in

1883?

A. Yes, sir; I was working for father, and he was. That connec-

tion brought me in connection with the manager of the firm in New

York nearly every day. His name was O. O. Bennett. He reported

himself to be the general manager. He had his name on the bill-

heads. | |

86 Counsel for defendants admits that O. O. Bennett was their

agent and general manager in New York city.

Witness continued: I used to be around about the warehouse.

where this cerealine was stored in May and June. Most of the cereal-

ine the defendants had for sale during the months of May, June,

and July was bad; hot; it was damaged; some mouldy. Half a

dozen parties returned it—half a dozen brew ers. I don’t believe the

defendants had it inspected in May and June.

3y counsel for defendants :

Q. Do you know? ;

A. I can’t say positively.

48 RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

By counsel for plaintiff:

(J. State what you know about it.

A. Soon as I found ont the goods were getting bad I had it in-

spected. I wouldn’t take any without it was inspected. I went

down to pier No. 4 and called in an inspector and had them inspect

it. The result of those goods that I had i inspected was eight to nine

out of ten bad. I wasn’t present. Eight to nine out of ten bags was

bad bags; hot; so hot that it would burn you. That fact was re-

ported to Bennett. I went there and told him what I got out of the

lot, and what was bad; this was at pier No. 4, North River. That

was the place where these goods w - landed from the W est; I believe

it was. I believe they used pier 2, but I never went there. I gen-

erally went to pier 4. They had a lot of these damaged goods

stored in 43 Water street, in J. D. Green's store. They had them

there sifting the goods and breaking the lumps. It was lumpy, and

some was mouldy and some was not, but it was a little off color.

They run it through the sieves, and the sieves separated it, and they

sewed the bags up again. They put in bags marked diamond C.

They had it on the floor and spread it out, and by spreading it out

it would take part of the smell off; then, after sifting it, they would

pick out the lumps; then, after they sifted it, they put it in bags

marked diamond C and sewed up the bags. Some of these goods

that were inspected and condemned were sent to brewers. The

goods that I found good I sent to my customers. Even those

S7- were sent back. After one week I went to Newark, to a firm

there,and I had them all inspected and sent them there, and

when I got there they were hot, and they were good when I sent

them. I had picked tiem out of this lot—out of the nine out of ten.

The inspector who inspected that lot is in court; it was Mr. Fitz-

patrick. After this stuff had gone through this process it would be

impossible for a person not acquainted with it to detect that any-

thing was the matter with it. It was a little off color, but they

wouldn’t know the difference. I got half a dozen customers that.

sent them back. I first discovered that these goods were getting bad

about June 2d. Up tothat time I had been dealing with my father,

from November, 1882, up to June 2d, 1888. The goods had proved

very fine up to that time, and after that nine out of ten that came

was bad, and that percentage which seemed to be good was sent back

in every instance. There seemed to be over two hundred bags that

had been sent round to 48 Water street to be sifted—I saw myself—

stored right in the place. I couldn’t say that there were as many at

one time as eighteen hundred. Mr. Bennett was told on the second

of June that these goods were damaged; that it wasn’t fit for brew-

ers’ use. He kept sending them after that. I know Mr. Kiefer was

a customer of Mr. Bennett’s. Hewas a customer after the second of

June, and goods were sent to him after the s€cond of June.

On eross-examination (by counsel for defendants) he testified :

Q. You know that goods were shipped to Kiefer after the second

of June?

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 49

A. Yes, sir; because I got the commissions out of it. We were

using these goods along in January and March, 1883, and they were

fine goods then. As far as I know there was nothing the matter

with them;-as good goods as I ever saw. I couldn’ t say positive

without looking over my books if they were good in April. I think

they were good the first of April. There was one lot—a car-load—

sent back ; I think that was in April; but they explained to me that

it was damaged by there being a leak in thecar. I think they were

perfectly good in January. About the first of June we discovered

that something was the matter with them. I took the goods up in

my hands and examined the condition of them ail. I found they

were slightly off color. You couldn’t hardly tell without you

was acquainted with it; but being acquainted with the

88 goods you could tell. I don’t know anything about the corn

being frost-bitten. Here and there were black specks in the

corn. Idon’t know what was done with any of those goods that was

sifted up there at 43 Water street. I don’t know where Mr. Kiefer’s

goods were shipped from. I don’t know for what purpose Kiefer

bought these goods from me. I don’t believe I got any commission

after June and July. I didn’t sell any of these goods that I in-

spected on pier 4, North River, to Mr. Kiefer. All I shipped and had

inspected was my own trade that I hadn’t turned off to Gaff, Gent,

and ‘Thomas, outside of the commission. I bought these goods of

defendants myself through father, and sold them myself. I was

father’s agent, and they became my goods after I bought them.

Q. You kept them and sold them to your customers and didn’t get

any commission from them ?

A. No, sir.

JOHN ABRAHAMS, being duly sworn and examined as a witness

for the plaintiff, testifies :

Q. For whom did you work in 1883, during the months of June

and the latter part of May ?

A. John D. Green, and I worked for him in July. I sifted cere-

aline during that time ; I sifted it at 43 Water street; when I sifted

it I put it into C bags. I don’t know whether the name of Gaff,

Gent and Thomas was on it. They are marked diamond C bags.

I saw brewers’ wagons coming there to get that stuff.. I never took

no notice of Mr. Kiefer’s wagons. I don’t know the names of the

wagons. We sifted all we had in there, pretty near; about a thou-

sand and more bags, I guess. It was in the spring of the year.

The bags were hard and looks to me to be all damp, and was warm.

It was spread out on the floor to cool off before we had sifted and

after we had sifted ; sifting it took the lumps out.

Q. Then did it look like this (showing witness sample cerealine)?

A. Browner,a little darker colored. It was in flakes and bunches

like this. T he bunches were all sifted out, so that it was in sepa-

rate pieces like this. Most of it- was put back in the same bags in

which it came. |

7—337 |

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RACHEL S. GAFF ET AL. VS. HENRY KIEFER.

defendants) he testified :

Q. Do you know what Gaff, Gent & Thomas sold those goods

for? -

A. No

On. cross-examination (by counsel for

89 JOHN Verpt, being duly sworn and examined as a witness

for the plaintiff, testifies : )

(. How old are you ? |

A. Twenty-two. I worked for Mr. Kiefer in 1883. I was driver

of his wagon. I have been to No. 1 Front street.

Q. Did anybody, when you went to No. 1 Front street during the

month of June, send you to No. 43 Water street *

A. Yes, sir.

Counsel for the defendants admit that he got these goods from

Mr. Green’s warehouse.

[ also got goods from pier 4 and pier 1, North River. I got goods

there in the monti of June. 1 got goods the from 41 Water street. I

got several loads from pier 4; I couldn’ t tell in what month ; it was

between June and July. I remember the time the last load was

brought to Mr. Kiefer’s place, : hen we discovered it was lumpy. I

got the last load; got it from 43 Water street.

No cross-examination.

THoMAS Firzpatrick, being duly sworn and examined as witness

for the plaintiff, testifies :

(. What was your business in 1883 ?

A. Flour inspector. In the month of June I inspected goods

marked diamond C from Gaff, Gent and ‘Thomas; they were cereal-

ine andcorn meal; made that inspection on pier 4, ‘North river:

about sixty-five per cent. were damaged; that was just when they

came from the car. I examined several lots during the month of

June. The first lot I done that young gentleman that was on

the stand here asked me to go and inspect for him. T have no idea

what time that was. We kept memoranda, but they are destroyed

now, because our business has changed from what it was then. I ex-

amined them for Mr. Licht. That was: the first lot I examined.

As a general thing, we examined the whole of it for O. O. Bennett.

He is the man that paid for the inspection. I knew what his busi-

ness wasatthattime. Weinspected for Mr. Bennett any time heasked

us. That certain article we inspected about June, July, or August.

About that time and afterwards, of course,other goods that he has we

inspected them right along without any question—that i is, cerealine.

That is the goods we found damaged ; about sixty-five per cent. for

sach car.

90) On the cross-examination (by counsel for defendants) he

testified :

Q. How many ears did you inspect ?

A. I inspected two. To the best of my knowledge, I made that

oo

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. ol

inspection in June. I am an official inspector of the produce ex-

change. I did not personally make an in-pection for Mr. Bennett

anywhere else. I made an inspection for Mr. Bennett at pier 4

about that time and found his goods sound. About this particular

time it was bad, and at other times it was good ; found the cerealine

good up to June or July, and then I examined two car-loads and

they were bad. We inspected when we were ordered.

(. Were you ordered to inspect when you found these two ecar-

loads bad ; were you ordered to make any other inspection ?

A. Yes, sir; and we found the rest of the goods bad, and for a

period of two months after that. Not all, but a certain percentage

were bad ; it was sour; don’t know the number of car-loads I found

sour, and I don’t remember the number of car-loads I inspected ;

‘don’t know the number of bags I inspected. I don’t know what

was done with the bags after I inspected. I examined the cerealine

inyself with my hand; it looked a little off color. The lumps

doesn’t amount to anything; saw a few black spots in it; it was

very hot. I didn’t find it lumpy nor moldy; don’t know what Mr.

Bennett did with it. I will tell you the reason I can’t remember

only being two cars is because there was two of us there at the time,

and, of course, I would inspect probably while I was there, and then

I would go away and the other man would inspect. All I remem-

ber doing myself during the whole sixty days was two cars.

By counsel for plaintiff:

Q. When you didn’t inspect your partner did ?

A. When I didn’t inspect my partner was there to inspect, but

what he done I don't know.

By counsel tor defendants:

Q. Do you mean to’say that you only inspected two car-loads, or

that you have only a distinct recollection of inspecting two car-

—, 9

That is what I said. I only recollect of inspecting two car-

Me ecrealine. Every day I was there I inspected goods—some-

times for Bennett and sometimes for others. Isaid this was hot and

sour; sifting it and sprei ading it on the floor would have a very fine

effect ; it would cool it; if it was then kept separate it could not be

detected.

91 @. After it had been sifted and spread out on the floor

would that allay the heat so that it could be put into the bags

separately and not be detected ?

A. Not very likely, unless by a professional.

Henry Kap, being duly sworn and examined as a witness

for the plaintiff, testifies :

Q. What is your name?

A. Henry Kalp; am a brewer; have been so about twenty-five

years. I was foreman in America fifteen years. In 1885 I brewed.

for Mr. Ochs & Lehund in Brooklyn. During the month of June,

52 RACHEL 8S. GAFF ET AL. VS..HENRY. KIEFER.

1883, I brewed beer from ccrealine bought of Gaff, Gent & Thomas ;

it was bought from O. O. Bennett. I got cerealine that is no good

for beer; the beer was sour and moldy ; found out in the fermenting-.

room that the beer was bad ; about ten or twelve days.

() Why didn’t you discover it before ten days? You saw this stuff;

how did it look—like that (showing witness sample)?

A. No, sir; it got a little stiff; a little hard. Before I put it in the

beer it looked all right. About 550 to 600 barrels of beer was ruined.

That beer could not be used for any purpose. I had very much

trouble with that beer. I got it mixed up with other beer in the

cellars. The beer that I mixed itup with got no good; it-rvined it:

it got sour.

On the cross-examination (by counsel for defendants) he testified :

Q. Do you know anything about the conditions under which the

cerealine used by you on that occasion was bought ”

Not answered. a

Q. Don’t you know that Mr. Ochs knew that about the time he

bought these goods, that 1t was damaged ?

A. I told him so. I told him the stuff in the fermenting-room was

not good. [seen it not before. I don’t know that these goods were

sold to Ochs & Lehund as damaged goods and at a reduced price

because they were damaged. I don’t know whether the balance was

returned to Gaff, Gent & Thomas. I used about fourteen hundred

pounds; that was not all I had; I got about a load; I used that in

the day. I got a load on the brewery wagon. [ got a load from O.

O. Bennett. I told him I didn’t use that stuff, and he told me to

send it back, and then I sent it back. I don’t know what Mr. Ben-

nett did with it.

On the foregoing testimony counsel.for plaintiff rested.

from the jury and dismiss the action, on the ground that the

evidence does not sustain the cause of action.

Motion was denied.

To which ruling counsel for the defendants duly excepted.

Counsel for the defendants then opened the case for the defend-

aunts and ecalled—

RicHARD ‘THOMAS, one of the defendants, who, being duly sworn

and examined, testified :

@. Where do you live? : 3

A. I live at Columbus, Indiana; am one of the defendants in

this action and a member of the firm of Graff, Gent & Thomas :-

was at Columbus, Indiana, in July, 1883. I manage generally the

purchase of the corn. I buy nearly all the corn that is bought.

When [am at home I buy it all. In April, May, June, and July,

1883, we bought the choicest white corn in the market. I inspected

that corn myself at the time it was bought. When it is delivered

to us in wagons it Is Inspected in the wagons. When it is delivered

in cars we send to that car for a sample taken from it—say, perhaps,

92 Thereupon counsel for defendants moved to take the case

RACHEL S. GAFF ET AL. VS. HENRY KIEFER. 53

agallon, and it is brought to our office and inspected. That sample

is brought from the car with what is known asa sampler—that is, a

hollow tube—and you can draw outa bandful ora pint, say, at a time.

It is inserted in the car and drawn from a section from the ear, and

when it comes to our office we examine it. Either myself or my

partner examined every car-load that was bought between the first

day of January, 1883, and the third day of July, 1883. The corn

that we bought during these periods was good, ‘choice white corn.

It was shelled corn, of course. To make cerealine the corn is taken to

the mill and elevated, passing through a large cylindrical corn-

cleaner, and then carried off.

93 @. Do you know whether or not Mr. Licht was discharged

by your firm ?

Counsel for plaintiff objects. The witness must state what he

knows.

Witness: I know he was. I saw Mr. Licht out at our mill in the

summer of 1885; it was the latter part of June. He came to my

office. I have heard read his evidence. I don’t remember any par-

ticular conversation he had with me there at that time. He came

there much to my surprise. because one of the members of our firm

was in New York at that time. I don’t remember definitely any

conversation any further than this, that he made some complaint

about the corn. I don’t remember him asking me anything about

the damaged goods or anything of that kind, but he may have asked

me. I think he made some, complaint about the corn, and I told

him that we bought the best corn we could get in the market; we

alwavs did that. Nothing was said about frost-bitten corn; that

we always made it our business to buy, the best corn; we didn’t take

any chances on our corn; we bought the best corn because our busi-

ness demanded that we should do so. We were putting our goods

on the market for food and for brewers’ use; that is what I said to

him, that we bought the very best corn always—the very best corn.

No frost-bitten corn was ever bought or used in our mill during that

period to make cerealine. I never at anytime said to Mr. Licht

that I knew our corn was frost-bitten, and I did not say that I could

not help it. I was buying the best corn that the country produced,

at that time, and it was the best I could do. I said nothing to that

effect. The idea that I intended to convey to Mr. Licht, and that I

did convey to him, and that I did say, was that we had the best

corn.

I told him we always bought the best corn on the market. That

is our business, to buy the best corn. It is bought under inspection

wherever we go. We buy principally in Peoria, besides that raised

in our own county and immediate vicinity.

(). What corn is that (showing sample) ?

That is white corn; that is called the Armstrong white corn;

that is grown all through our section; that is like the genel ral

character of the corn we bought in 1883. We never bought any

frost-bitten corn.

~

o-4 RACHEL 8S. GAFF ET AL. VS. HENRY KIEFER.

into your mill, about this time, of your own knowledge ?

A. I know it 1s first class. At no time did frost-bitten corn go

into our mill for the purpose of manufacturing cerealine.

94 @. Did you see it? Do you know that it did?

' A. I inspected the corn myself. No corn went into that

mill that was bad.

(). Did Mr. Licht at the time he had the interview with you in

your office, in the month of June, 1883, say to you words as follows:

“What in the world is the matter with your goods. There is a ter-

rible sight of complaint, and our goods — sent back from all the cus-

tomers I sold to.” Did hes say such a thing as that?

A. No, sir; he did not, and I did not at that time or any other

time reply, “ Well, Mr. Licht, we can do no better. Our corn in this

section of the country is all frost-bitten. It is the best we can do.

We can dc no better. Is all got frost-bitten, and we can’t get no

better corn here to make jt.”

Q. Then did he say, “ You better not make any goods. I would

just as lief sell a baker flour with arsenic or poison to make bread

as to sell a brewer that to make beer with.” Did he say that”

A. No; he never said any such thing. TIT did not reply, “ It is the

best we can do. We ean dono better. We can’t get any better corn

in this section of the country.” What I did say was, We always

buy the bestof corn. That evidence of Mr. Licht’s is wholly untrue,

emphatically. During this period in 1883 we manufactured about

fifteen car-loads a week of cerealine, and each car-load ‘contained

about fourteen tons—twenty-eight thousand pounds ; about that. Of

that eleven thousand tons of cerealine in 1883 I don’t think there

was any returned to us as being damaged prior to—well, you might

sav June and July. I don’t think there was any returned to us

prior to that time. The percentage that was injured was very light

indeed. Of course, | haven’t the data. Before that time—before

July and June, 1883—I don’t remember that we had any difficulty

with any cerealine. [ don’t think we had. We had goods returned,

of course, during June and July. [ can’t tell exactly how much. |

have no recollection of any goods being returned to us before

95 these goods were damaged here in New York. I can’t tell

how much, but it was very slight. That was in the. month

of June. I know the amount damaged in New York in June and

July, 1883, was within a thousand bags. I know it didn’t exceed a

thousand bags.

Q. Did you see those goods”

A. I didn’t see those goods : no, sir.

(). What condition wer e those goods in after their manufacture,

in all cases when they left your mill in Indiana ?

A. In perfect condition.

Q. Were they in the condition that this is (showing witness sam-

ple)?

A. Yes, sir; they were packed in sacks and shipped in cars with

the bags sewed up, and marked diamond C. That is the way we

mark our sacks. Our shipping clerk inspected those goods when

Q. What do you know about the quelity of the corn that goes

~

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- Ses et _ ee: bead

RACHEL S. GAFF ET AL. VS. HENRY KIEFER, JO

they left our mill. He is under instructions. Under general in-

structions they were shipped. They were shipped to O. O. Bennett,

in New York. He was our agent in New York for the sale of these

goods and accounting for them. They were landed at pier 4; never

directed any goods to be landed at pier 2 or pier 1. IT have handled

those goods personally myself so as to be acquainted with their

qualities. When the cerealine comes in contact with water, leaky.

cars, or where they might be packed too closely in store, a large

amount together, where they wouldn’t have a sufficient amount

of air to work through, or they might be heated, it might be injured.

The heat forms lumps in the bags. It also discolors it, and also

sours it and it gets musty. Mr. Green was our warehouseman. |

heard the testimony that there was some sifting took place at his

place. When we settled with Ochs & Lehund those goods that we

sold them were sent back. They were billed to them as damaged

goods.

Q. They were sold to them as damaged goods?

A. Yes, sir.

Counsel for plaintiff objects to the question, “ Were they sold to

him as damaged goods,” on the ground that the witness, not having

made the sale, is incompetent to testify how they were sold. (Qb-

jection overruled ; plaintiff excepts.)

96 Q. What became of that cerealine you sold to Ochs &

Lehund ? |

A. I don’t know anything about it. We took it back from them.

[ know, Mr. Moulton, that we took it back, but they don’t allow me

to state anything without I was there. Yes; we took it back; we

took it back by negotiation with Messrs. Ochs & Lehund, and that

matter was then settled afterwards. I called on the plaintiff in the

summer of 1883 at his place of business, in Brooklyn, at his brewery ;

Mr. Schalk was with me. Mr. Licht is not now in our employ. I

called on plaintiff, as I told him, simply to see the man who had

sued us for thirty-two thousand dollars; I wanted to look at him,

that is all. I said to him, “1 think there is nothing init; why

don’t you withdraw it aud drop it?

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Record and brief — Rachel S. Gaff, Joseph F. Gent, and Richard Thomas, Plaintiffs in Error, vs. Henry Kiefer | Frix