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November 4, 1937


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

A criminal information was filed July 9, 1937, against the above-named defendant, charging violation of the United States Grain Standards Act, title 7 U.S.C. § 71 et seq. (7 U.S.C.A. § 71 et seq.), in that nearly a year earlier, on August 4, 11, 12, 19, 25 and 26, 1936, the defendant sold seven different truck loads (500 bushels) of corn by grade, to wit, "No. 2 Yellow Corn," for shipment in interstate commerce, which corn had not been inspected and graded in accordance with the statute.

The allegations are comprised in seven counts, the last three of which, through typographical mistake, are misnumbered counts VI, VIII and IX instead of V, VI and VII. The last count was withdrawn at the close of the trial, as being repudiated by the evidence.

 It is provided in section 85 of the statute that:

 "Any person who shall knowingly violate any of the provisions of sections 76 or 79 to 83, inclusive, of this chapter, * * * shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not more than $1,000, or be imprisoned not more than one year, or both."

 In section 74, the Secretary of Agriculture is authorized to fix and establish standards of quality for corn and other grains, and to alter or modify such standards as required. In section 76, it is provided that, whenever standards shall have been fixed and established under this chapter, shipment or delivery for shipment in interstate or foreign commerce by grade is prohibited "unless the grain shall have been inspected and graded by an inspector licensed under this chapter and the grade by which it is sold, offered for sale, * * * be one of the grades fixed therefor in the official grain standards of the United States," subject to certain provisos not here involved. Section 77 forbids a representation attaching to grain so shipped other than as shown by the certificate of inspection, and authorizes the Secretary to cause examinations to ascertain whether the grain does in fact conform to the grade so shown.

 The defendant is charged with violating sections 72 to 77 of the law.

 When the case was called for trial, both the government and the defendant waived a jury and submitted the cause to the court for disposition. Probably this was proper. Schick v. United States, 195 U.S. 65, 24 S. Ct. 826, 49 L. Ed. 99, 1 Ann. Cas. 585.

 The corn involved was sold on July 10, 1936, through two written contracts, by the defendant in New York City to the Poultrymen's Service Corporation of Toms River, New Jersey. The lots were of 2,000 and 5,000 bushels, respectively, of "No. 2 Yellow Corn guaranteed cool and merchantable."

 The purchaser testified at the trial, that the entire 7,000 bushels of corn as contracted for were duly delivered to the truckman employed by it to pick up the corn at the elevator of the New York State Barge Canal in Brooklyn, and that it was inspected by the purchaser's foreman, a farmer, and that the corn so delivered conformed to the requirements of the contracts as to quality and that the purchaser had made no complaint to the United States Government or any agency or department thereof with reference thereto, and was fully satisfied with the corn as delivered.

 It will be seen that the information has to do with 3,000 bushels, or less than half the amount covered by these contracts.

 The 2,000 bushel contract covered spot grain; i.e., corn then ready for delivery in the said elevator, and the 5,000 bushel contract covered corn to arrive and to be taken by the purchaser at his option during the month of August, 1936.

 The contracts read in part: "Chicago, Milwaukee, Duluth, Superior, Buffalo or New York (Seller's Option) inspection and weights. Other conditions as printed on the back hereof.If not correct advise us at once. Demand draft with customary documents attached."

 Thus corn inspected and graded at any of the places named was contemplated by the parties.

 It should be stated that the Government does not dispute that this corn was duly inspected by Government inspectors in Chicago and certified as "No. 2 Yellow Corn," and it does not appear that any departmental steps were taken pursuant to the provisions of section 77 above referred to, upon the theory that the corn was incorrectly certified.

 The question for decision is whether a violation of this statute has been established under the evidence, on the theory that there should have been a reinspection before delivery was made at the State elevator in this district.

 Defendant's Exhibit D consists of two "Federal Appeal Grade Certificates" issued June 5 and 6, and its Exhibit E is a like certificate issued on May 28, 1936. The grain ex S. S. Tomlinson covered by the June 5th and 6th certificates arrived at the Marine elevator in Buffalo on June 9th and was loaded into the barge Andy ...

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