
    CENTURY DISTILLING CO. v. CONTINENTAL DISTILLING CORPORATION.
    No. 9789.
    United States District Court E. D. Pennsylvania.
    March 6, 1950.
    Joseph S. Clark, Jr., Philadelphia, Pa., for plaintiff.
    Leonard L. Kalish, Philadelphia, Pa., Robert T. McCracken, Philadelphia, Pa., for defendant.
   KIRKPATRICK, Chief Judge.

I adhere to the rulings as made.

Of the various matters urged upon the Court by both sides at the re-argument, the only one which calls for comment is the allocation of freight charges. This was one of the comparatively few points at which the Court did not adopt the Master’s report.

The Master evidently proceeded with the thought in mind that, being without evidence from which the allocation could be made with absolute accuracy, it was. incumbent upon him to make as fair an estimate as he could. This is a perfectly correct approach where the item is one as to which, under normal accounting practice, the records will not contain evidence from which an accurate allocation can be made. In an accounting of this kind, there are undoubtedly items as to which it is necessary, if any allocation is to be made, to resort to a “fair” method as distinguished from an accurate one. An example is the item of salaries of general officers. I -doubt that it would ever be possible to produce a record of the actual days or hours devoted by any officer to any particular product. Business records are not kept in that fashion. That, however, is not the case with freight charges. As a matter of fact, every item of freight charges is identified with a particular product at the time it is paid out. Records can be kept so that it would be easier to make an apportionment of freight charges than of purchase of supplies, labor or almost any other item. As pointed out, throughout the accounting period Century was a trademark infringer with proceedings pending against it and with adverse decisions of the Patent Office against it. If there was any good reason why it could not have kept its record of freight charges so that an absolutely accurate apportionment could have been made it has not been made clear to me. As a matter of fact, even as the records were kept, such apportionment could have been made but it would have involved such a vast amount of labor and effort that Century, in apportioning such freight charges, chose a short cut based on an allocation by volume of shipments without reference to the distinction between carload and less than carload shipments, confirmed by a spot check.

I do not say that the Master did not adopt the fairest possible method on the evidence which he had before him, but beyond the minimum which I allowed, there was at best a probability that it was accurate instead of a certainty as there would have been if Century had been able or willing to present the actual figures.  