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United States v. Weymann.

June 16, 1944

UNITED STATES
v.
WEYMANN.



Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Guy K. Bard, Judge.

Author: Dobie

Before DOBIE and McLAUGHLIN, Circuit Judges, and KALODNER, District Judge.

DOBIE, Circuit Judge.

Joseph E. Weymann (hereinafter called Weymann) was tried, found guilty and sentenced, in the District Court of the United States for the Eastern District of Pennsylvania, for a violation of Section 4(a) of the Emergency Price Control Act of 1942, January 30, 1942, c. 26, Title 1, Section 4, 56 Stat. 28, 50 U.S.C.A. Appendix, ยง 904. The relevant part of this Act provides:

"It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section 2, or of any price schedule effective in accordance with the provisions of section 206, or of any regulation, order, or requirement under section 202(b) or section 205(f), or to offer, solicit, attempt, or agree to do any of the foregoing."

A jury was waived and there is little or no dispute concerning the basic facts in the case. We need, on this appeal of Weymann, discuss only a single question: Was there sufficient evidence to support the finding of the District Court (which is here legally equivalent to the verdict of a jury) of Weymann's guilt? We think there was.

Weymann was a manufacturer of burlap and cotton bags in Philadelphia and, prior to the transactions herein discussed, had never engaged in the buying or selling of oranges. He had, however, sold bags for many years to orange growers in Florida. Weymann had particularly cordial relations with the Clark Fruit Company (hereinafter called Clark) of Florida, by virtue of the fact that Weymann had sold bags to Clark at less than the ceiling price for bags.

There was a rather acute shortage of oranges in May, 1943, and fruit dealers in the North had no little difficulty in securing them. Freeman (of the firm of Freeman and Chezik, orange dealers in Philadelphia) met Weymann on the street in Philadelphia and the scarcity of oranges was discussed. According to Weymann's testimony: "He (Freeman) asked me if I could get him any oranges." Later Weymann "called (on the long-distance telephone) the Clark Fruit Company and at that time he (Clark) told me he might possibly get me some oranges if I came to Jacksonville. I spoke to Mr. Freeman about it, and I told Mr. Freeman if I go down it would cost him $500.00 a car if I could get these oranges for him." No mention whatever of Freeman and Chezik was made in this telephone conversation between Weymann and Clark.

Weymann went to Florida, negotiated with Clark, and twenty carloads of oranges were, under Weymann's directions, shipped by Clark to Freeman and Chezik in Philadelphia. As each carload was shipped, Weymann notified Freeman and Chezik, who sent certified checks to Weymann, payable to his order. Some of these checks were for an amount equal to the ceiling price of the oranges, f.o.b. Florida, $3.33 per box. When that was so Weymann would endorse the check to Clark. In other instances when the checks were in excess of ceiling price as charged by Clark they were cashed by Weymann and he would then pay Clark the ceiling price in cash. On three occasions Freeman and Chezik sent Weymann checks in the flat amount of $500 and on two occasions checks for $1,000. Weymann concedes that the net effect of the payments by all these certified checks was that they equalled $3.33 per box for the contents of each car (paid to Clark) plus $500 (paid to Weymann) per car.

While these transactions were being consummated, Clark kept a running account with Weymann, while Freeman and Chezik also kept a running account with Weymann. No accounts whatever were kept between Clark and Freeman and Chezik. Clark looked to Weymann, and to Weymann alone, for payment. No credit was extended by Clark to Freeman and Chezik. Clark's invoices were made out to Weymann. The Government introduced one of these in evidence - a printed bill-head of Clark, upon which, following the printed words "Sold to", was written: "J. E. Weymann".

Weymann strenuously contends that he did not violate, and could not have violated, the Emergency Price Control Act of 1942, because, in all the transactions in question, he acted solely as the agent of Freeman and Chezik. Accordingly, he insists, he never acquired any title to the oranges, and he never "sold", "delivered", "bought" or "received" the oranges in violation of any maximum price regulation. The sum of $500 per carload of oranges (amounting in all to $10,000 on the 20 carloads) was, we are told, received by him solely as the commission of an agent, or the fee of a broker, acting not for himself but entirely for his principal - here Freeman and Chezik.

The findings of Judge Bard, in the District Court, were:

"Now, it seems to me there are two principal questions to be determined here. The first is from whom did Freeman and Chezik purchase the oranges, and secondly, whom did they pay and how much did they pay for the oranges.

"Now, on the first question the evidence, it seems to me, shows that the only person with whom Freeman and Chezik dealt was the defendant, Joseph E. Weymann; therefore, I conclude that the evidence shows that Freeman and ...


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