Gordon v. United States

203 F.2d 248 (1953) rev'd 347 U.S. 909 (1954)

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Nature of the Case

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Facts

The first count in the information charged Ds, Allan Gordon, and Eli Tempkin, doing business as National Stores, and Burt Deverich and Harvey Stone made an installment sale of a sewing machine designed for household use to Buean E. Colley, and that on the delivery of such machine Ds unlawfully, knowingly and wilfully accepted and received a down payment in an amount less than a sum equal to 25% of the sale price thereof in violation of Section 601 of the Defense Production Act and Regulation W promulgated thereunder. Gordon and Tempkin (D) were partners in a sewing machine and appliance business and were convicted of selling sewing machines in violation of the Defense Production Act. The Act required a showing of willfulness. The case was tried and submitted on the theory that the knowledge of one partner regarding the offending transactions was imputable, attributable and chargeable to the other and that the knowledge and acts of the salespeople who made the sales and kept the records while acting in the course of their employment were imputable and chargeable to the employing partners. Gordon (D) lived in Los Angeles, California and that he came to Salt Lake City two or three times to attend sales meetings and to make sales talks. There was no proof that he participated in or had actual knowledge of any of the sales laid in the information or any other sales shown in the record to have been made without the required down payment. Indeed, the sales contracts introduced in evidence show the receipt of the full amount of the required down payment. Similar contracts, duplicate bank deposit slips, and evidence of like transactions all showing the full payment of the down payments and their deposit in a Salt Lake City bank, were mailed daily to the Los Angeles store for records there. There is no direct or positive proof that either Gordon or Tempkin (Ds) made, participated in, or had actual knowledge of either of the transactions. D was convicted and appealed.