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J. J. Quarry

 

J. J. Quarry, Retailer

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POSSIBLE QUARRY CANCEL ON PROPRIETARY REVENUE

Measured by the sheer number of users, retailers probably cancelled proprietary battleship revenue stamps more often than either manufacturers or wholesalers. Yet identification of most of the proprietary cancels employed by retailers is extremely difficult and illusive.  This paradox occurs because of the vagueness of the governing Spanish-American war tax regulations and the circumstances under which the retailers encountered the regulations.  As they applied to proprietary products, the regulations stipulated that covered products sold after the effective date of July 1, 1898 display a cancelled stamp on the product as proof of tax payment, and further specified that this cancel identify the user, but then deemed the mere use of initials sufficient to make that identification.

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QUARRY CANCEL ON DOCUMENTARY REVENUE

Moreover, despite their numbers, most retailers had only minimal contact with the proprietary tax regulations and the required stamps.  To comply with these regulations, many retailers engaged in a one time act of stamping their stock on hand on June 30, 1898.  Since each retailer’s stock consisted of a variety of different products in various sizes, there was no uniformity concerning the values of stamps used by these retailers or the manner in which the retailers cancelled the stamps.  Most retailers used whatever hand-stamping devices they happened to have at hand to cancel the stamps, so most of the cancels produced are merely an undifferentiated jumble of letters and a date.  Only in cases where the retailer printed its entire name or its location as well as its initials, or where the retailer itself sponsored a product and thus had incentive to produce a consistent group of cancels over some period of time, is a positive identification possible. The proprietary Quarry cancel shown above is at best a probable match, but then only because of the unusual combination of letters of Quarry’s initials.

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BRITISH STAMP ACT ONE PENNY REVENUE STAMP

On the other hand, manufacturers and wholesalers had different concerns with respect to complying with the proprietary tax regulations.  First, because their products came in specified sizes, they had only to cancel the one, two or three of the twelve possible proprietary values that represented the retail prices of the size of the bottle or package of their goods.  Second, because they wished to continue the uninterrupted sale and distribution of their products, in most cases, they assumed the obligation of applying the proprietary stamps to the goods during the manufacturing and distribution process before they reached the retailers.  They could order cancels printed on the values they needed and apply these stamps to the goods while they were still together in bulk before separation and display on retail shelves.  Printing also served to standardize the arrangements of initials that manufacturers and wholesalers used as cancels. For all these reasons, the proprietary cancels of manufacturers and wholesalers are usually easier to identify than those of retailers.

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BRITISH STAMP ACT HALF PENNY AND FIVE SHILLING STAMPS

The second cancel shown above is also a Quarry cancel, but it is completely different from that on the other stamp because it was cancelled with a different stamping device that contained both the company’s full name and location, which makes identification certain.  While, at first glance, this stamp appears virtually identical to the other one, it actually comes from a different series of stamps, and its use arises from a different set of regulations that applied equally to pharmaceutical retailers, manufacturers and wholesalers, as well as to virtually every other business in the United States.  These regulations taxed not a particular product or industry, but rather the documents which memorialized specified classes of business transactions, and collectively, therefore, are referred to as a “documentary” revenue tax.  The idea of collecting revenue by taxing documents first arose in the 17th Century in the Netherlands and spread from there to France, England and the rest of the world.  In the earliest settlements of North America, the English colonists themselves had often used such tax on documents to raise revenue. It was also the same kind of tax which those same colonists labeled the hated “Stamp Tax” when the British imposed it on the colonies in an attempt to recoup their expenses after the French and Indian War ended.  The difference between that earlier tax and this one was that those required “stamps” were impressed either onto the paper with an inked device or crimped into the paper with a seal.  Stamps – in the form of postage stamps – were not invented until 1840 and were first devoted to revenue collection in the United States in 1862 during the Civil War.  In Quarry’s case the documentary tax stamp was probably originally affixed to a check, since payment of money by check was one of the classes of business transactions that were taxed under the 1898 Act.

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1901 QUARRY AD

The stories of retailers, in general, are less complicated to tell than those of the manufacturers or distributors, since these latter groups sought to build financial empires either by wild, flashy promotions of their products or by the earnest practice of sharp-elbowed capitalism.  In this era (with notable exceptions whose stories will appear in this column in due course), the typical retailer owned a single drug store. In larger towns and cities, the proprietor of this store was often a trained pharmacist. In more rural hamlets, the local general medical practitioner rolled the drug store into his medical office, or the local general store merchant stocked drugs “cheek by jowl” with dry goods, staples, farm implements and various and sundry other merchandise.  Because of their single locations, retailers tended to build their lives and reputations in one city, and their histories are entwined with that of their locale.  In fact, in this particular case, the details of the personal histories of the retailers are overwhelmed, and largely obscured, by this images they left behind.

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1905c DOWNTOWN ANN ARBOR POSTCARD

Quarry’s store was in the center of Ann Arbor, MI.  A Flickr user compiling the history of a later establishment whose existence stemmed from Quarry’s store spotted it in the background of a postcard entitled Downtown Ann Arbor.  She excised it and enlarged the image.

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DETAIL OF POSTCARD

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ANOTHER VIEW OF THE QUARRY STORE

Precise records about James J. Quarry are lacking. He was born somewhere in Ontario, Canada on a date listed variously, but imprecisely, between April, 1861 and 1866.  An 1883 graduate of the Ontario College of Pharmacy, he emigrated to the United States in either 1884 or 1885.  By 1893, he was working in Ann Arbor as an employee of Goodyear & Co, a drug store operated by Dr. J. J. Goodyear, himself an 1877 graduate of the Cincinnati College of Medicine and Surgery. When Goodyear bought the business in 1880, he was continuing a drug business that had operated in Ann Arbor on Main Street at the same location since 1836. It remained there, even after Quarry went off on his own, for another forty years.

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1902 TRADE PUBLICATION PHOTO

After acting as the head prescription clerk in Goodyear’s drug store, as well as serving as the Secretary and Treasurer of the Goodyear Drug Co., which was incorporated in 1897, Quarry opened his own drug store in 1898 a few blocks away in a newer shopping district closer to the campus of the University of Michigan.  To remain competitive in a town filled with drug stores, Quarry apparently specialized in retailing surgical tools to physicians as well as carrying supplies for the University’s hospital and graduate schools. He also advertised that he was a so serious a specialist in compounding drugs that he removed his soda fountain in order to have a larger area to devote to filling prescriptions.

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1908 QUARRY AD

From the time he opened his business, Quarry employed one G. Claude Drake as his head clerk.  He was born in Dryden, MI, a small town roughly 50 miles northeast of Ann Arbor, in 1872 and spent his entire adult life in Ann Arbor.  Drake appears to have had a flair for advertising because he arranged four times within two successive years to have Quarry’s store and his window displays featured in drug trade journals.  He even got one of his Christmas displays reproduced in a 1910 book instructing pharmacists how to do window displays.

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1902 DRAKE WINDOW DISPLAY ARTICLE

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1903 DRAKE WINDOW DISPLAY ARTICLE

One of the journals, published by Parke, Davis & Co. of Detroit, showed Drake’s display of its tooth care products.

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1904 PARKE, DAVIS & CO TRADE PUBLICATION PHOTO

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DRAKE DISPLAY IN 1910 WINDOW DISPLAY BOOK

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When Quarry died in Ann Arbor in 1921, Drake continued the drug business under Quarry’s name and tirelessly promoted the store as “The Quarry.”

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1922 TRADE PUBLICATION PHOTO

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1928 QUARRY AD

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1936 Quarry Ad

In 1927, Drake also opened a sandwich shop which, after 1935, operated under his manager and successor until 1993, and is fondly remembered in the Flickr posting.

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1928 DRAKE SANDWICH SHOP AD

Drake died in Ann Arbor in 1950.  In 1978, his daughter donated his papers to the Bentley Historical Library of the University of Michigan.  Contained in these files is the photo shown below of the interior of Quarry’s drug store picturing Quarry and Drake among others.

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© Malcolm A. Goldstein 2017

 

 

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John D. Park & Sons

John D. Park & Sons, Wholesaler

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POSSIBLE PARK CANCEL ON BATTLESHIP REVENUE

FREEDOM OF CONTRACT VS. MONOPOLY

John D. Park & Sons was a middleman in the drug industry. As a mid-west wholesaler located in Cincinnati, OH, it bought goods – mostly in the form of patent medicines – from national manufacturers and resold them to local retailers. Yet it holds an outsized place in the history of the pharmaceutical business in the United States because it waged a legal battle over approximately twenty years that permanently linked its name with the creation of a significant principle of American antitrust law that endured for almost one hundred years.

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PARK CANCEL ON GOVERNMENT ISSUE REVENUE 1880c

After the Civil War, as business in America grew and thrived overall, such industries as oil, steel and sugar, which dealt in fungible goods, consolidated to the point where the linked corporate boards of the producing companies, referred to as an “interlocking trust directorate,” controlled, by means of a “horizontal” monopoly, the entire supply of that particular product available in the United States market. While admired for their efficiency in delivering commodities cheaply, quickly and uniformly, these trusts engendered public fear that industry monopolies would lead to unchecked and abusive retail prices. At the height of the Gilded Era, between 1890 and World War I, the trusts and their detractors fought a pitched battle to shape the continued growth and development of American business.

     PARK POSTCARD TO CUSTOMER – 1877

Patent medicine manufacturers, wholesalers and retailers admired the efficiency and uniformity of the trusts and wished to emulate the trust structure within the pharmaceutical industry. However, because of the separate “patents” (meaning, in this case, secret and private formulae, rather than formally registered patents) for the manufacture of each medicine, the patent medicine business was not amenable to the same rigid domination as oil, steel or sugar. In 1876, drug wholesalers from eleven Midwestern states gathered in Indianapolis, IN to fashion a strategy which would allow them to maintain uniform resale prices across the industry in order that every member of the wholesale association, large or small, be able to compete on a level playing field. The organization that grew out of that meeting was called the Western Wholesale Druggists’ Association. In 1882, it changed its name to the National Wholesale Druggists’ Association (NWDA).

TRADE CARD FOR PRODUCT DISTRIBUTED BY PARK

Over years, the NWDA along with similar organizations of manufacturers and retailers, designed, developed, imposed and policed various contractual schemes to insure that all wholesalers followed the same rules in dealing with retailers. At first controlled by having manufacturers refund part of the wholesalers’ purchase price in the form of rebates after the wholesalers certified that the goods had been resold at the fixed resale price, these strategies ultimately evolved as far as to require manufacturers to individually mark and track goods package by package (or bottle by bottle, as it were). That these contractual plans had the additional benefit of ensuring maximum retail sales prices for the participants did not offend these manufacturers, wholesalers, retailers or their sponsoring organizations in the least.

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PARK COVER TO A PATENT MEDICINE MANUFACTURER – 1889

The efforts by the NWDA, and the associations of manufacturers and retailers, can be viewed two different lights. On the one hand, most businessmen thought the NWDA and the other trade organizations were simply vindicating one of the oldest principles in commercial law: the legal doctrine of “freedom of contract” which holds that parties are free to sell only to those customers with whom they choose to do business and only upon such terms as they desire to set in the contract. They also believed that the inverse also held true: parties could not be forced to sell to those with whom they did not wish to conduct business nor could such sales be coerced upon terms that interfered with the sellers’ freedom to condition sales as they chose. In the Gilded Era, this doctrine, wielded both as an offensive and defensive weapon, seemed ingrained as deeply as capitalism is itself, and was always the first position argued in litigation. Moreover, businessmen regarded Park’s actions as ungentlemanly, rude and sharp business practice when it purchased goods from wholesalers and retailers who had made contractual promised to the manufacturer to resell the goods at the prices the manufacturer specified. In addition, because the nostrums were prepared from privately held formulae, the drug industry always asserted the additional claim that there was a legitimate element of secrecy in the manufacture of these concoctions that earned it an extra cloak of limitations, such as setting the price the wholesaler could supply retail customers. While patent medicines are now largely extinct, such claims of additional protection for items developed from specific processes, thoughts and ideas still exist and are now fought over in modern litigation under the rubric of “intellectual property” rights.

     

PARK PRICE LIST – APRIL 1892

Opposed to the notion of “freedom of contract” was an older common law doctrine, developed over hundreds of years, that a businessman could not unfairly manipulate the market to do deliberate injury to his competitors. Claiming such unfair market manipulation, the pleas of two constituencies opposed the trust defenders’ arguments of efficiency, speed, scale and uniformity (as buttressed by claims of special reward attaching to the generation of the underlying idea). First, there was the public outcry from those who had to truckle to the high prices set by the trusts for the goods that they manufactured, processed or even moved. For example, a particular sore spot was agrarian anger at the railroad trust over charges for carrying farm products to market. Second, and to a lesser degree, there were the complaints from the businesses squeezed out by the trusts, who decried the unfair methods of competition deployed against them to drive them under. These pleas, when combined with a general public skepticism of centralized economic power wielded by an elite class of “robber barons” routed in the old common law doctrine, became so constant and so poignant that they led to the passage of the Sherman Antitrust Law in 1890, which was intended to curb the worst abuses by limiting the monopoly power that any one company could wield within a single industry. Since, as noted above, the nostrum business operated differently from the big trusts, like oil, sugar and steel, it was not immediately apparent that the Sherman Act even applied to it. Park ultimately proved that it did.

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PARK COVER TO ANOTHER WHOLESALER – 1894

Within the drug industry, the NWDA, through its restrictive contract systems, acted as the surrogate for the trust structure that other industries created. John Park & Sons emerged as the company that bucked these constrictive schemes by price-cutting and underselling its competitors. Park insisted upon its right to determine itself the price at which it re-sold goods purchased from the manufacturers. Because of Park’s stance, NWDA blacklisted Park by ordering its members not to sell goods to Park. No matter who initiated the litigation nor was actually named as the opposing party in the litigation, it was really the NWDA that Park was fighting. Park soon became a pariah within the drug trade, although it had begun in much the same way as other wholesalers had.

     EARLY NWDA CIRCULAR AIMED AT PARK – 1887

PARK’S HISTORY

In fact, the firm of John D. Park & Sons had existed for nearly half a century before it began its struggle with the NWDA. Its founder was John D. Park, who was born in 1816 in the hamlet of Livingston Manor, Sullivan County, in the Catskill Region of New York State and spent his youth there farming and learning medicine. In 1841, he moved to Cincinnati and opened a retail drug store with Benjamin F. Sanford, another New Yorker, born in 1818 in the town of Camden, Oneida County, northwest of Rome, N.Y. To expand the scope of their business, Park and Sanford soon became the local agents for the eastern patent medicines they were selling.

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SANFORD & PARK AD – 1842

One of Park’s patent medicines was Wistar’s Balsam of Cherry. In or around 1843, Sanford and Park apparently obtained the right both to manufacture and sell this nostrum west of the Allegheny Mountains from L. Williams & Co., a Philadelphia firm, which had purchased the formula for the medicine from Henry Wistar, a Virginia doctor, himself a scion of a famous glass and bottle making family. As was often the case with nostrums, Williams later dealt its remaining interest in the formula to another party, in this case one Isaac Butts, who, in turn, quickly sold it in 1845 to Seth W. Fowle (1812-1867), himself an ambitious Boston retail druggist with the same desire as Park to expand into the manufacturing and wholesaling business.

TRADECARD FOR WISTAR’S BALSAM OF CHERRY (SETH W. FOWLE)

Unlike Park, Fowle’s company issued its own private die proprietary stamp to pay the earlier tax on patent medicines imposed during and after the Civil War, and was therefore profiled by Holcombe, although the material mostly describes the Fowle stamp, and reveals little about Fowle himself. Also, unlike Park, Fowle concentrated heavily on Wistar’s Balsam of Cherry as its principal product.

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SETH W. FOWLE PRIVATE DIE PROPRIETARY MEDICINE REVENUE STAMP

After the Mexican-American War, about 1850, the shape of the United States changed with the formal annexation of the western third of the country. Park and Fowle both continued to manufacture and market Wistar’s Balsam of Cherry, occasionally competing for the small volume of sales in the newly acquired territory. As later alleged by the Fowle company, in 1869, finally recognizing the potential for growth in the western region of the country (as well as Canada and Mexico), Fowle negotiated an agreement with Park which: 1) clearly defined Park’s territory as lying between the crests of the Alleghenies and the Rockies, Park’s former traditional central region of the country; 2) set a uniform minimum price per dozen for volume sales of the Wistar’s Balm of Cherry manufactured by either company; and 3) compensated Park for accepting these limitations. However, according to Fowle, Park continued to sell its Wistar Balsam both in New York City and on the West Coast as well as to undercut the agreed upon volume sale price to retailers. After doing a slow burn for years (as well as meticulously collecting evidence of Park’s clandestine sales), in 1886, Fowle sued Park in Cincinnati to enjoin its continuing encroachments on Fowle’s territory. Perhaps because of Park’s home town connections, the suit appears to have been summarily dismissed without a formal opinion. Just as strangely, Park submitted no argument and made no appearance when Fowle appealed the case to the Supreme Court, and that Court, noting both Park’s non-appearance and the lack of explanation by the lower court of its reasoning for the dismissal, in a decision, aptly titled Fowle v. Park, just as summarily reversed the lower court and, in 1889, entered judgment for Fowle.

    

PARK’S WISTAR BOTTLE

Fowle v. Park marked Park’s first major engagement in the courts. The dispute was of a fairly common variety in this period. Infringement claims often arose between manufacturers and wholesalers over territorial rights to market a product, or copying of medicine bottles or labels too closely. Perhaps because of the outcome of the case – which appears to have been a resounding defeat for it – Park both learned how to conduct business as an outsider in the industry and how to employ the grit and determination to stay the roughly twenty year course it took to ultimately prevail in the later dispute over resale price control, which, while only a subsidiary issue in Fowle v. Park, became the dominant matter in subsequent litigation.

FOWLE’S WISTAR BOTTLE

However, long before the battle concerning Wistar’s Balsam of Cherry concluded, Park had enlarged his scope of endeavors by cementing a formal alliance with an eastern drug wholesaler. After Sanford had dissolved his partnership with Park in 1850, Park went into business with the major New York City drug wholesaler Demas Barnes (1827-1888) . Through Barnes, Park also for a time was involved in a San Francisco partnership, called Park and White, with one Thomas White (1825-1902).

PARK & WHITE AD IN HONOLULU NEWSPAPER “THE POLYNESIAN” – 1861

As an aside, Barnes, whose business flourished in the 1850s and 60s before he left its active management to pursue careers in politics and publishing, was an adventurous entrepreneur who acquired a number of nostrums from earlier proprietors, and, like Fowle, exploited the advertising value of issuing his own private die proprietary stamps to pay the tax imposed during and after the Civil War. According to Holcombe, at its peak, Barnes’s business had subsidiary offices as well in San Francisco, Montreal and New Orleans. Later, he used his fortune to finance a variety of other companies whose stories in the Civil War period have been explored by Holcombe. In due course, these stories will be explicated and further enlarged in subsequent columns.

              

    

SELECTION OF PRIVATE DIE PROPRIETARY REVENUE STAMPS USED BY DEMAS BARNES

Through his partnership with Barnes, Park leveraged himself into a major position in the pharmaceutical industry, for Park, as recounted by Holcombe, had a hand in the direction and guidance of a number of other smaller firms in the industry: A. L. Scoville & Co., a wholesale druggist with offices in Cincinnati and New York City; S. N. Smith & Co., a wholesale druggist in Dayton, OH; the Lyon Mfg. Co. a drug manufacturer and wholesaler in New York City; and D. H. Seelye & Co. a manufacturer in Freeport, IL. With the sundry products manufactured and sold by these different companies, Wistar’s Balsam of Cherry became a much smaller part of Park’s focus. For his part, Park was able to channel patent medicines manufactured in the Midwest to Barnes and also supplied Ohio Catawba wine to Barnes for sale in his New York City drug depot.

SAMPLE OF PRIVATE DIE PROPRIETARY REVENUE STAMPS

OF OTHER COMPANIES ALLIED WITH BARNES & PARK

    

A. L. SCOVILLE & CO. AND DR. D. H. SEELYE & CO.

    

S. N. SMITH & CO. AND LYON MANUFACTURING CO.

Although Park seems to have officially ended his business partnership with Barnes in 1861 (and, according to one source, not particularly cordially, since Barnes advertised in 1862 that Park was selling a counterfeit version of another of his products) the web of connections with so many other manufacturers and suppliers which Park was able to form through the association with Demas Barnes in this era appear to have sustained the Park company throughout the years of fighting with the industry after its break with NWDA over retail pricing took place. Park was somehow always able to obtain sufficient goods through its connections with firms that operated in large cities, such as St. Louis, Chicago, and, in particular, New York City, where the market was so fluid that competition was always too keen for NWDA to effectively impose its price control schemes.

     PARK AD – 1854

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PARK AD – 1877

Over the years the Park firm endured ups and downs. In 1877, as it moved into new quarter in Cincinnati, it discontinued its retail trade entirely in order to concentrate totally on the wholesale pharmaceutical market. While that action also might have been taken in conjunction with a reorganization in bankruptcy (which drew an extremely rare mention of a Cincinnati firm in the New York Times), a trade magazine later implied that the 1877 move was the natural outcome of the continued growth of the wholesale business, and reported that when the Park firm incorporated in 1891, its stated capital was $2,000,000 which had only grown thereafter.

    

PARK AD – 1895

Park also developed the commercial model during this period which allowed it to differentiate its pricing from the others in the trade. The firm made no secret about how it was able to undersell its competitors. The usual method for wholesalers to solicit orders was to send their traveling salesmen to the retailers. Park simply employed no “travelers;” retailers mailed in their orders. The firm estimated it saved about six to eight percent of its overhead, which it gladly passed on to the retailers. To the rest of the industry, Park’s pricing method became known as “cutting.”

EXHIBITS TAKEN FROM PARK’S TWENTY YEAR DAMAGE LAWSUIT

    

NWDA MEMBERS REGRETFULLY COMPLYING WITH NWDA CUTOFF

THE BATTLE JOINED

When NWDA took as its mission the stamping out of “cutting” and “cutters,” it found it had its hands full with Park. In 1894, Park opened its attack on retail price control by suing NWDA and the four other wholesale drug firms in the Ohio Superior Court in Cincinnati claiming that they were all part of a “combination” formed “for the sole purpose of maintaining excessive rates and charges for certain proprietary articles or medicines throughout said United States,” and asking for an injunction both barring them from placing Park, and those companies which chose to do business with it, on a national “cut list” and from interfering with sales made to Park. However, when the case came on for hearing, NWDA’s lawyers argued simply that the defendants were exercising their freedom of contract. The court agreed and Park’s lawsuit was summarily dismissed.

    

MORE REFUSALS BY NWDA MEMBERS TO DEAL WITH PARK

A month after the failure of the Ohio state lawsuit, in September, 1894, John D. Park died at age 78. The dual nature of Park’s role both as an important western wholesaler and as an industrial provocateur is captured in the tribute paid to him after his death. Although the lawsuit remained on everyone’s mind and was discussed in his obituary, a special gathering of his colleagues in Cincinnati drafted memorial resolutions to send to his family and to “the principal trade papers” in the country.

TRADE MAGAZINE PUBLICATION OF JOHN D. PARK MEMORIAL RESOLUTIONS

Park had traversed the Nineteenth Century trajectory from rags to riches. He had amassed a fortune, a handsome city house and a country estate. Married in 1845, he was survived by seven of his ten children, five of whom were involved in the business. The mantle of leadership passed easily to his eldest son, Ambro R. Park. Ambro was born in 1849, joined his father’s firm right after graduation from Berea College in Kentucky, and was quoted as saying about the Ohio lawsuit: “All we want is our rights.”

    

GREATER PRESSURE APPLIED BY NWDA UPON MEMBERS – 1894

The firm continued its campaign to undermine the NWDA contract scheme. Its actions weighed heavily on the organization’s deliberations. In 1895, after a meeting of a special Proprietary Committee appointed at its annual meeting in New York in 1894, an NWDA representative “admitted” to a New York Times reporter that Park was “the only conspicuous backslider among 300 wholesalers and jobbers, and all measures of control and punition [sic] were aimed at that firm because its system is inimical to the interests of all. “

“EMBARRASSED” MANUFACTURER REJECTS PARK’S PURCHASE ATTEMPT

Ambro Park kept his father’s fight going next by filing two huge complaints in New York City. In the first suit, the Park firm again sued NWDA and other large wholesalers alleging they cooperated together through the NWDA to blacklist Park. The firm sought a court order to bar this practice. In second lawsuit, filed in 1897, Park did not name the NWDA but rather approximately twenty of the largest wholesalers and manufacturers in New York City, together with their partners individually, asking for the monetary damages it had suffered as a result of their joint action against it. Because of the complexity of the issues the suits raised, together with the sheer number of persons, business and specific transactions they touched upon, the complaints were complicated. While modern legal pleading style requires discrete and succinct statements of facts individually alleged, even in their more stylistically and linguistically convoluted times, these complaints were considered “voluminous.” The second complaint, occupying some 120 single spaced pages of a later appellate record volume, stretched to 378 discursive and prolix allegations, sought damages in the enormous amount of $500,000, and was accompanied by 156 exhibits, mostly letters received and compiled by Park from various companies specifically citing the NWDA blacklist as the reason for its declining to do business with it. The complaint in the first action was slightly larger and longer.

MORE NWDA MEMBER REJECTIONS OF PARK ORDERS

Considering the sheer bulk of these complaints, defendants first successfully moved to strike out parts of the both complaints as irrelevant and redundant. The trial court granted defendants’ motions, beginning a saga, not unlike Dickens’s Jarndyce v. Jarndyce in Bleak House, that continued for no less than 18 years, for Park immediately exercised its right to make an intermediate appeal of these rulings. Naturally, prosecution of an appeal touching upon the appropriate scope of the subject matter of the lawsuit necessitated delays in the actual prosecution of the claims made in the suit. The next year the reviewing courts required Park to restate its claims in fresh complaints in both suits, so Park was forced to begin again.

After several more years, the parties agreed to have the court hear the issue directly involving the NWDA first. Since the issue of stopping the blacklisting of Park, was considered a matter of equity, or a judgment the court could itself make by its study and application of the appropriate law, it made sense to determine this issue first. If the court found in Park’s favor, the issue of the monetary compensation due to Park for the injury, if any, considered a matter of common law damages requiring elaborate proof of facts, could properly be left for determination by a jury in the trial court after complete and final resolution of the equitable issues. If defendants won, the lawsuit would be over, or, at least, so the parties thought.

     On the pure legal question of whether NWDA and its members could blacklist Park, all the defendants simply entered a legal “demurrer;” they took the legal position that the court could accept the facts as stated by Park, BUT EVEN IF [the BUT EVEN IF being the “demurrer”] the court accepted the facts as stated by Park, the court possessed no power under law to compel them to do business with Park. Relying essentially on the “freedom of contract” argument, they asserted simply that Park had pleaded no claim that the court could act upon to grant Park’s wish. In 1900, the trial court agreed and dismissed Park’s equitable claims. Park again appealed to the intermediate level court which affirmed the trial court’s decision.

In 1903, the Court of Appeals of the State of New York, New York’s highest court, affirmed the lower court’s rulings in NWDA case. The ruling was a split decision. Of the seven judges ruling, two judges entered two opinions upholding the NWDA’s rights, with which four judges in total agreed, and two judges entered two opinions upholding Park’s claims, with which three judges in total agreed. The principal opinion favoring the NWDA stressed the fairness of the NWDA’s plan of uniform distribution and profit protection for small wholesalers, as well as NWDA’s lack of coercion of Park, and applauded the NWDA for protecting the little distributors against predation by larger unscrupulous wholesalers like Park whose capacity for bulk purchases might force the smaller distributors out of business. The secondary opinion supporting NWDA stressed that the NWDA’s scheme did not directly impact the retail price of goods offered to the public because it was merely an agreement among manufacturers and wholesalers, and that because neither party to the suit was attempting to aid the public, no public interest was involved, thus depriving the court of the authority to intervene in one merchant’s rules about its sales to another merchant.

On the other hand, the principal dissenting opinion, holding that the NWDA’s plan effectively placed pricing of goods in the hands of the customers rather than the manufacturers, and pointing to the number of manufacturers and wholesalers who had previously dealt with Park who declined to sell to it only after the adoption of the NWDA’s pricing plans, found in such actions the requisite coercion of Park to constitute an improper attempt at monopoly sufficient to sustain Park’s charge of a boycott against it. The second dissenting opinion, agreeing with the first, sharpened the nub of the dissenters’ disagreement with the pro-NWDA judges by finding that the public was perniciously impacted by the requirement of resale at a fixed retail price placed on the those who endorsed the NWDA plan.

    

Even without the goad of the federal Sherman Act, the final vote of the New York court was a razor-thin 4-3 margin in support of the NWDA and against Park. However, only one dissenting judge articulated the growing trend of both legal and public opinion to focus upon the potential harm to the public inherent in fixing the ultimate price retailers might resell their goods to the public. While times were beginning to change, Park still had not prevailed and both New York State lawsuits should have ended at this point, but, by means of a legal manoeuver, Park’s attorneys managed to preserve the damage suit (the one not naming the NWDA) even though the Court of Appeals ruling in the injunction suit had cut off its legal rationale for proceeding.

A SECOND FRONT OPENED

THE PERUNA DRUG MANUFACTURING CO. COVER – 1901

For a time, though, other litigation came to dominate Park’s concerns. One of the hottest sellers of the first decade of the Twentieth Century was a beverage known as Peruna, classified as a “bitter,” but, in reality, so prized for its “medicinal effect” that many bars sold it in individual “doses” by the shot glass. Its manufacturer, the Peruna Drug Manufacturing Co. of Columbus, Ohio, owned by a figure named Samuel B. Hartman (1830-1918 – a character who, in due course, will receive his own column) governed Peruna’s distribution through its own individual contract system which resembled the NWDA’s because its terms pledged wholesalers who purchased from Hartman to sell only to retailers: 1) with whom Hartman specified had signed an agreement with Hartman to retail Peruna at the price Hartman had set; 2) who adhered to Hartman’s coded system for tracking its bottles; and 3) who reported their adherence to Hartman’s pricing schedule back to Hartman. Hartman alleged that Park was buying Peruna from some of its wholesalers or retailers, and sued Park to enjoin Park both from purchasing Peruna from such wholesalers or retailers and from attempting to induce such wholesalers or retailers to sell Peruna to it in breach of their agreements with Hartman.

SAMUEL B. HARTMAN

This time the litigation “shoe” ought to have been on the other foot. In the prior litigation, Park had tried to force others to do business with it, and the courts simply would not exercise their injunctive power to “mandate” (coerce) parties to enter into business transactions if one side was unwilling. The courts kept finding that “freedom of contract” allowed such resistant parties simply to decline to do business. In this lawsuit, however, Hartman was trying to have a court use its injunctive power to “enjoin” (prevent) Park from entering into contracts with parties that Hartman itself had alleged were willing to sell Peruna to Park. Since injunctions preventing defined acts judged to be improper are much easier to police and enforce than those directing or compelling some undefined form of proper conduct, the court was being asked to make a much more traditional kind of ruling and, in the area of business relations between parties, apply well-worn rules against unfair competition. Yet even against that background, the local federal district court had no trouble finding that Park was interfering in a most unsavory way with the appropriate contractual arrangements Miles had put in place. The “freedom of contract” rationale once again prevailed and Park had chalked up another litigation loss.

EARLIER HARTMAN REJECTION OF A PARK ORDER

Park appealed to the federal Circuit Court, the intermediate court between the district courts and the Supreme Court. In this forum, it received a more sympathetic hearing. This Court began its analysis from the perspective that age-old common law, tracking public suspicion against monopolies, acts to keep commerce unfettered and to prevent one business from gaining an unfair or improper advantage over its competitors. The Court measured Hartman’s complaint both against this old common law bias against monopolies and restraints of trade as well as the provisions of the new and still developing federal anti-trust law stemming from the Sherman Act of 1890. Having set a legal framework much more cordial to Park, the Court then centered its analysis on whether Hartman could assert some palpable legal grounds to use its contract system to trump the usual prohibition against monopolistic practices.

NWDA CIRCULAR LISTING COMPANIES THAT DO BUSINESS WITH PARK

AND DIRECTING ITS MEMBERS NOT TO SELL TO THEM

     

     

Hartman argued that its rights derived from the proprietary nature of Peruna’s medical formula, likening its secret nature to a patent or a trademark.  In such patent or trademark cases, the government recognizes the uniqueness of the invention or marketing device by issuing to the person holding a patent or trademark an exclusive license – a monopoly – to condition its further use by others who make contracts to license the patent or trademark (often called grantees or licensees) as the grantor of the license wishes, in recognition of the effort expended by the grantor in devising the patented product or trademark. A part of the protection such a license carries is that the grantor also is permitted to place restrictive conditions upon its subsequent use by a sub-licensee or subsequent licensee who derives its rights from the original grantee or licensee.

JUDGE HORACE LURTON

In its decision, Hartman v. Park, the Circuit Court, speaking through Judge Horace Lurton, drew a distinction between the mere secrecy protecting the formula of a patent medicine and an actual patent or trademark, which is issued only after the unique or innovative nature of the object patented or trademarked is demonstrated. The Court held that the mere secret formula used by Hartman to prepare Peruna was not a patented and did not warrant the protection of a patent. In addition, the Court found there was a difference between a contract involving actual manufacture of the underlying formula, which might be enforced to the extent of preventing disclosure of that formula by a party contractually bound not to disclose, and the kind of sale of the already-bottled medicine involved in the present suit. By drawing that distinction, the Court could discuss and “distinguish” – avoid being bound by the reasoning of – both the earlier decision in Fowle v. Park, and the 1903 New York Court of Appeals Park opinions discussed above, saying that in the former the court had credited the assertion that the challenged contract involved the actual improper use of the formula by a contractually restricted party, and in the later, that Court believed that the NWDA’s contract system was bottomed on protection of patented or trademarked formulae.

NWDA MEMBERS’ LETTERS REFUSING TO SELL TO

COMPANIES ALLEGED TO DO BUSINESS WITH PARK

ORDER REFUSAL LETTER FROM HARTMAN TO CHICAGO COMPANY

ISSUED UNDER DIRECTION OF NWDA CIRCULAR

The Court then bowled over seriatim Hartman’s remaining arguments. It disposed of any separate trademark claim, since it found Park was not attempting to fool the consumer by insinuating a look-alike product in place of Hartman’s. As for any other potential contract claims, not only did it reiterate that Hartman had not even alleged any direct contract relationship with Park, it also disposed of other contractual relationships that Hartman attempted to allege. It found that Hartman could not claim that Park was interfering with his “agents,” since it found Hartman’s sales to its wholesalers to be completed transaction, and commented that Hartman was merely attempting to “juggle words” when it argued that the wholesalers or retailers were acting as Hartman’s agents. It also found that Park, as a buyer from parties who had purchased from Hartman, had assumed none of those parties’ contractual obligation to Hartman, even if Park were aware that those parties were not complying with the terms of their contracts with Hartman. The court noted that Park’s purchase transferred absolute title to the medicine to Park and that any obligations which had run between the seller and Hartman remained entirely with that seller.

Thus, using the common law tests concerning business relationships, the Court found that Hartman could assert no patent or trademark restrictions to block Park, could demonstrate no direct contractual relationship with Park, and could impute none of the limitations it imposed upon its contract-holders to Park. Moreover, the Court found that several other courts had begun to apply the Sherman Act prohibitions against monopoly to contract systems resembling Hartman’s. It ruled that Hartman was entitled to no relief. In March, 1907, Park had finally achieved its first legal victory.

THE TIDE CHANGES

Within two months after the Hartman decision, another significant case reached its conclusion as well. President Theodore Roosevelt had energized his Justice Department to seek out and prosecute Sherman Act violations. Among the industries it had sued was the pharmaceutical industry. As discussed previously in the article on the United States Pharmacal Co., the government prosecuted a single action against associations representing manufacturers, wholesalers and retailers in the United States District Court for Indiana sitting in Indianapolis, IN. The “Indianapolis Decree,” issued in May, 1907, required the scrapping of all of the proprietary medicine industry’s contract systems on the grounds that because two or more manufacturers, wholesalers or retailers, acting as  “horizontal” classes, had joined together to sponsor them, they were “conspiracies in restraint of trade” as defined in the Sherman Act. Among the systems proscribed by the Indianapolis Decree was the NWDA’s scheme.

Now that the NWDA’s plan was officially dead, could Park collect for the damage it had suffered at the hands of the NWDA? There might yet be a chance. Notwithstanding the loss of the lawsuit against the NWDA in its New York lawsuit in 1903, Park had thereafter filed yet another amended complaint in its second New York lawsuit seeking damages against the individual defendants in the original 1897 litigation, apparently with the permission of defendants. Simultaneously, Park had filed an action in the federal district court of New York seeking the same injunctive relief under federal law, including the kind of injunctive relief it had just been denied by the New York state courts. Because the Hartman case and the government’s case in Indianapolis were both pursuing the same questions, the parties held both this new complaint in Park’s state damage action and the new federal injunction action in abeyance pending those rulings. Eventually Park also filed a damage suit in federal court as well to complement the injunctive relief it was seeking. Such federal Sherman Act damage suits had the additional bonus of permitting the injured party to ask that its damages be tripled as a penalty for the defendants’ violation. While also held in abeyance, Park’s damage claim was pleaded now at $2,000,000.

In 1909, Park filed two different motions in its dormant New York state lawsuit. First, it asked the New York State court to permit it file a new complaint embodying the facts of the favorable Hartman ruling and the favorable Indianapolis Decree into its original state lawsuit while upping its damage claim to $3,500,00. Although the trial court agreed with Park that the new circumstances were germane to the issue, the intermediate reviewing court disagreed and the parties returned again for a final ruling to the New York Court of Appeals. In another written opinion, that Court ruled that Park could not incorporate subsequent events into the original complaint. That litigation proved to be another costly, time-consuming paper blizzard leading to another defeat for Park.

Second, Park moved to conduct discovery – that is, it asked the trial court’s permission to formally collect the evidence it needed to prove its damage claims in the 1897 litigation by taking the testimony of defendants under oath, particularly those not readily available within the New York Court’s jurisdiction. Since the trial court believed that the current state of affairs, rather than the original circumstances, ought to govern the final outcome of the litigation, that court appeared inclined to allow Park to collect the accurate facts it needed to prove its damages. Because of the appeal of the other motion amending the complaint and the twisted history of rulings on that issue, the litigation surrounding this discovery motion seems yet again to have remained pending for a number of years.

DR. MILES MEDICAL CO. COVER – 1898

Even with the Hartman decision and the Indianapolis Decree now looming in its face, NWDA was not willing to concede the injunction issue and Park still faced challenges to the principle that manufacturers and wholesalers could not control the retail price of their goods when resold. After the Indianapolis Decree, another major manufacturer, the Dr. Miles Medical Co., promptly filed suit against Park under its own individual contract system. It contended that unlike the NWDA’s system, Miles was a single manufacturer acting by itself to protect its own business. As a single manufacturer, it argued that it simply set the price at which the goods would be sold at retail, that intermediate wholesalers and retailers were merely its agents and, therefore, it conspired with no one to fix any price Twenty years before it began marketing Alka-Seltzer, the name which carried its fame into the modern era, Miles was then selling as its principal product Nervine, an effervescent pre-cursor of Alka-Seltzer claimed to soothe nerves and headaches. Specifically because the suit was filed after the Indianapolis Decree, the industry hailed it as the vindication of the individual manufacturer’s right to impose its will upon retailers, and dismissed Hartman as an aberration.

    

JUSTICE CHARLES EVANS HUGHES IN 1911 AND AS HONORED BY THE U.S.

THE MILES V. PARK DECISION

The federal District Court and Circuit court (again speaking through Judge Lurton) quickly disabused the industry of its pipe dream that the old way could continue by adopting the reasoning of the Hartman decision. Still, it is the Supreme Court that has the final say as to what becomes the law of the land. At the very beginning of January, 1911, the Supreme Court (with the now appointed Supreme Court Justice Lurton not participating because it was his ruling being appealed) heard the parties’ arguments. Very much like the Hartman case, Miles required wholesalers and retailers who offered its product for sale to sign individual “agency” contracts pledging themselves to market to the public at pre-determined retail prices, and Miles similarly sought an injunction prohibiting Park from interfering with its contractual relationships with its wholesalers and retailers. Applying the reasoning of Hartman, the Court, this time speaking by Justice Charles Evans Hughes, found in April, 1911 that the transfers of the bottled medicine were completed sales rather than transitory placements with “agents,” were therefore properly classified as attempts to control the retail price of Peruna, and thus constituted a monopoly in restraint of trade. Rather than finding a traditional “horizontal”conspiracy in the concerted activity of multiple manufacturers, wholesalers or retailers acting together with each other to fix prices, in this case, the Court found for the first time that the conspiracy was “vertical,” encompassing not only the manufacturer but also the wholesalers and retailers. It judged these wholesalers and retailers not to be the manufacturer’s “agents” but rather separate entities who “conspired” with the manufacturer by signing the manufacturer’s contracts. Moreover, in the Miles case, the Supreme Court pronounced a hard and fast rule that any attempt by a producer or manufacturer to control the retail price of its product after that product was sold in commerce was “per se” – by itself – a violation of the federal anti-trust law. Such “per se” violations do not require the party alleging the violation to engage in a complicated economic analysis to demonstrate the existence of a monopoly in the market where the price of an article is being fixed; proof of the act of price-fixing by itself – per se – serves as proof of the violation.

    

JUSTICE OLIVER WENDELL HOLMES IN 1911 AND AS HONORED BY THE U.S.

No less a judge than Oliver Wendell Holmes, voiced a lone dissent in Miles, finding that wholesalers ought to be regarded as agents of the manufacturer and that retailers could be converted into such legal agents with a few changes in the contractual language. Stressing one last time the businessman’s freedom of contract (by now a minority notion) and claiming that an overemphasis was being placed upon price competition for items not necessities, Holmes found Park’s conduct in inducing breaches of the Miles system of contracts to be distasteful. He warned that the majority’s decision was “reached by extending a certain conception of public policy into the public sphere.” This new public policy, embodying Theodore Roosevelt’s crusade against conspiracies to control retail prices, remained the law of the land for nearly one hundred years.

With the law now firmly fixed in its favor, Park now finally attempted to set the trial of its New York damage case. In 1915, the New York Times reported that it had secured an order requiring Dr. William Jay Schieffelin (1866-1955), the chief of one of the most important drug wholesalers in New York City and himself head of the New York City Citizen’s Union, then, as now, a political watchdog organization supporting good municipal government, to give testimony about the manner in which the NWDA attempted to blacklist Park. Curiously, while the original complaint had named Schieffelin and his company as defendants, none of the exhibits attached to the original complaint had demonstrated wrongdoing by the Schieffelin firm.  The Times summarized the history of the litigation in the following paragraph:

         

NEW YORK TIMES ARTICLE FROM 1915 AND DR WILLIAM JAY SCHIEFFELIN

Perhaps because of the potential embarrassment of having the chief advocate for good government forced to testify about a conspiracy of businessmen agreeing to block Park’s attempts to do business, thereafter, the historical record concerning that 1897 New York state damage litigation ends. Usually, such silence means that the parties had reached a voluntary accommodation of their differences. However, drug industry trade magazines reported in January 1916, that Park filed yet another Sherman Act case against the individual wholesalers and manufacturers in the New York federal court. This complaint seems to have been a single lucid restatement of all the damage claims Park had already filed in its earlier federal court action. Once set forth in a single manageable statement, the parties could address these claims seriously, and the same publication shortly thereafter reported that the case finally was settled when defendants paid Park $125,000 in the spring of 1916. Perhaps this amount was not a large monetary return for claims once alleged to be as much as $3,500,000, but Park had stayed the course and vindicated its position.

From beginning to end, John D. Park & Sons, acting through Ambro Park, was clear about its willingness to keep fighting against retail price-fixing and its goal to prohibit such practices. Park also was forced to fight in the legislative arena as well. In 1914, when Representative Raymond B. Stevens of New Hampshire introduced a bill to legalize retail price maintenance agreements, Park sent his attorneys to testify against the bill at Congressional hearings. They re-confirmed Park’s business model in testimony which led to the passage of the Clayton Act that refined and sharpened the Sherman Act. Thereafter, Representative Dan V. Stephens of Nebraska re-introduced the bill several times, ultimately to no avail, but Park was still railing against the Stephens bill and the legalization of price-fixing it permitted in 1916 even as he was discussing the favorable conclusion of his twenty year litigation.

THE AFTERMATH

Perhaps it was the 1919 ruling by the Supreme Court in U.S. v. Colgate & Co., which finally confirmed a manufacturer’s “freedom of contract” right simply not to deal at all with any wholesaler or retailer it chose to decline to do business with, that allowed the Miles v. Park ruling to endure for so long and put an end to the need for the Stephens bill which Park had decried. In Colgate, the government charged Colgate & Co. (which, like Fowle and Hartman, we will meet again at some future time in this column for a greater examination) with maintaining the same kind of contract scheme that Miles had outlawed. This Supreme Court skated around the holding in Miles by finding that Colgate executed no pieces of paper with its wholesalers or retailers actually binding them to charge a set retail price. The Court found that Colgate simply made widely known its policy that it would conclude no subsequent sales with any party who did not sell its goods to the public at the prices it wanted them retailed. The Court endorsed the finding of the lower court that: “The retailer, after buying, could, if he chose, give away his purchase at any price he saw fit, or not sell it at all, his course in these respects being affected only by the fact that he might by his action incur the displeasure of the manufacturer, who could refuse to make further sales to him, as he had the undoubted right to do.” So long as it exercised no legal hold on a subsequent seller’s price, a manufacturer could do as it pleased. If wholesalers and retailers felt the need to offer that particular manufacturer’s products, like the very popular Colgate brands, then they would have to bend to the manufacturer’s policy. If not, the manufacturer lost the sales. As long as the market itself governed the parties’ choices, the Court believed no party could be injured by its own voluntary choices.

Having created a loophole in the Miles rule against vertical price-fixing, the Court was content to let all parties – manufacturers, wholesalers and retailers – conduct business as they saw fit. Over the years, as parties bounced between the extremes of the Miles rule and the Colgate exception, as well as some federal and state legislation which, for a while, allowed some “retail price maintenance” under defined limited circumstances, a certain degree of confusion ensued in the state of the law, particularly as the Supreme Court gradually began to use a “rule of reason” test to determine whether other kinds of monopolistic practices violated the Sherman Act. Rather than simply declaring a particular class of practices per se illegal, the Court came to determine that most business practices ought better be judged in terms of whether they were “unreasonably” restrictive. Making such judgments often required a great deal of expert testimony as to what was the appropriate market a product was competing within and how much of a restraint the challenged rule placed on the parties’ ability to transact business within that market, but the Court came to believe that such evaluations yielded a more realistic economic picture of the circumstances the parties were really facing, and a keener judgment of whether parties were competing fairly with one another.

Finally, in 2007, the Supreme Court decided to take another look at the entire question of how vertical price controls should be evaluated in a case called Leegin v. PSKS. PSKS, a retailer, sued Leegin, a manufacturer of leather goods for women who refused to sell to it because it would not resell Leegin’s goods at the prices Leegin was insisting its other retailers maintain. At trial, Leegin tried to introduce expert economic evidence that its policy actually made its goods more valuable and competitive by creating an upscale retail environment that differentiated Leegin’s goods from those sold by discounters. The trial court refused to hear the expert evidence on the grounds that, applying Miles, it found Leegin’s policy concrete enough to constitute a per se violation of the Sherman Act. On appeal, the Circuit court agreed with the District Court, and Leegin appealed to the Supreme Court. While agonizing over a number arguments that supported retention of the per se rule (not least of which was its general rule about adhering to its own prior decisions known as stare decisis), the Supreme Court nevertheless determined that the Miles per se rule no longer served the business community well, that it was grounded in a rote application of old-fashioned, out-of-date economic assumptions, and that modern economic theory required the “rule of reason” approach to apply to vertical price-fixing situations just as it had come to apply to other Sherman Act violations. The lower court decisions were reversed, the case was sent back for further proceedings. The Miles per se rule was overruled and consigned to its place in history.

The Park company did not last as long as the law it made. It was a family business, and while Ambro Park, its strong voice, stood at the helm, it persevered. He died in 1925 at age 76, and by the close of 1934 all five of John D. Park’s children who had been involved in the business were dead. While there were Park children in the subsequent generations, none had the first-hand experience of the first two generations in running the company, and, moreover, the will of the last second generation survivor, John D.’s daughter, Susan R. Park, who had initially acted as company secretary and after 1930 had led the company, required that the company be disposed of within two years after her death in August, 1934. While early in 1935 there were preliminary negotiations for the company to be continued under the Park name after purchase by some unspecified eastern wholesalers, John D. Park & Sons was liquidated in September, 1935. By early 1937, its former company headquarters had been leveled and the materials sold as used building material. The Park name was gone from the pharmaceutical business, but lives on so long as “vertical price control” remains a subject of anti-trust law.

©  Malcolm A. Goldstein 2017

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E. A. Osterhout

E. A. OSTERHOUT, MANUFACTURER

Chances are the hand-stamped initials “E.A.O.” appear, in one of several varieties, on at least one 5/8¢ blue, or RB23 as they are otherwise known, in any lot of battleship proprietary revenues offered for sale.  The ubiquity of the cancel on the RB23 belies the scarcity of information concerning the owner of the initials.

REPRESENTATIVE 1898 PROPRIETARY REVENUE E. A. O. CANCEL VARIETIES

osterhoutea-2-rb23-t1-1898-1     osterhoutea-2-rb23-t1-1898-3

HORIZ. INITIALS AND YEAR DATE

osterhoutea-2-rb23-t2-1899-02-28  osterhoutea-2-rb23-t2-1899-11-13-127

HORIZ. INITIALS, MONTH, DAY, 4 DIGIT YEAR DATE

osterhoutea-2-rb23-t2a-1900-03-19     osterhoutea-2-rb23-t2a-1900-04-02

HORIZ. INITIALS, MONTH, DAY, 2 DIGIT YEAR DATE

One, and only one, significant fact emerges from countless searches seeking knowledge about this person: E. A. Osterhout was a woman.

osterhoutea-2-rb23-t3-1898-3     osterhoutea-2-rb23-t3-1899-1

VERT. INITIALS AND YEAR DATE

osterhoutea-2-rb23-t4-1899-01-28

VERT. INITIALS, MONTH, DAY, 2 & 4 DIGIT YEAR DATE

osterhoutea-2-rb23-t5-1899-1

VERT. & HORIZ. INITIALS AND DATES (ERROR?)

osterhoutea-2-rb25

RB25, 1¼¢ VALUE (UNUSUAL FOR OSTERHOUT) – HORIZ. CANCEL AND YEAR DATE

While their presence in the patent medicine business was not entirely unknown, women were identified almost exclusively with products treating “female complaints.”   The face of the most famous woman, Lydia Pinkham, actually served as the trademark image for her line of goods for more than one hundred years and appears at this distant remove on the watered-down version of the product bearing her name still sold today.  On the other hand, Osterhout never attempted to use her own image to promote use of her products and they were not restricted to curing “female complaints.”

osterhoutea-50a-1apinkhamad

NOT E. A. OSTERHOUT (LYDIA PINKHAM)

Osterhout marketed soaps and products derived from the mineral waters of Medical Lake, Washington.  In the male-dominated Nineteenth Century, she seems to have tried never to use her first name.  Possibly she meant to leave her gender ambiguous.  Even after she married, the only name she ever attached to her advertising was E. A. Osterhout.  Even a personal letter from her to a member of another Osterhout family inquiring about possible kinship – the crucial link, which unambiguously establishes both E. A. Osterhout’s identity as well as her connection with the patent medicine business – is signed E. A. Osterhout.  It now resides in the archives of that other Osterhout family (apparently notable in its own right in the Southwest), and is misidentified in that collection as written by a male because of her signature using initials in place of her first and middle names.  In the ambiguous fashion of identifying herself as “E. A. Osterhout,” she managed to conduct her business in Chicago for a very long time.

osterhoutea-6-1890-1ltreaotojpo-8-22-1890-portaltotexashist

E. A. OSTERHOUT’S 1890 LETTER

There are only two occasions when she may have permitted herself to be identified as Mrs. E. A. Osterhout.  In the records of the Columbian Exhibition of 1892 and 1893 held in Chicago, the Osterhout exhibit of toilet soap is identified as being sponsored by Mrs. E. A. Osterhout.  Although there was a separate Woman’s Exhibit at this World’s Fair (duly assembled by the wealthy wives of the worthies of Chicago), E.A. Osterhout’s soap display definitely was not part of the Women’s Exhibit.  It stood in the manufacturing exhibition hall.

osterhoutea-22acolumbianexpositionlisting-1893

COLUMBIAN EXPOSITION LISTING

The only other extant possible evidence of E. A.’s femininity is a single 3/8¢ value, RB22, which appears to be cancelled “Mrs. E A O.”  To be completely accurate, one is obliged mention its existence, but it proves nothing, since the “O” is cut off and there were other druggists whose names began “Mrs. E. A.” who might have used a 3/8 ¢ value, an RB22, to prove tax payment on a product sold in one of their drugstores.

osterhoutea-2-rb22mrsea

MRS. E. A. OSTERHOUT (?)

The statistical record comprising E. A. Osterhout’s life is stark.  It consists of three notations in her father’s census reports (two federal and one state) and one entry of her marriage.  None of these documents registers identities consistently.  Her father was William H. Osterhout who was born in “New York” in 1810 (or 1811).  Her mother was Sarah A. Gardner, two (or three) years younger than her husband.  William reported that he lived in Watervliet, N.Y. in the 1850 U.S. Census and the 1855 New York State Census and in Cohoes, N.Y. in the 1860 U.S. Census.  E. A. Osterhout was born near Albany, N.Y. in 1841 (or 1843).  In 1850, Emily was age 9, and was listed as the fifth of six children: one older brother, three older sisters and one younger brother.  In 1855, Emily is listed as age 12, and is the fifth of six children: now four older sisters and one younger brother.  In 1860, Emila is listed as 19, and is the middle child of an older sister and younger brother living with her parents.  Emiley A. Osterhout’s only independent listing is the record of her marriage on July 26, 1891 in Milwaukee, WI to one Thomas Wight, son of Eli Wight and Mary Kellan.

osterhoutea-6a-1889-1jrnlindustrialed-1889-90-vs45

E. A. OSTERHOUT 1889 AD

In addition to the mysteries about the identity of E. A. Osterhout, the exact nature of the business relationship Ms. Osterhout had with the remedies she advertised, which originated at Medical Lake, WA, is somewhat unclear in historical retrospect.  Ms. Osterhout described herself in her advertising sometimes as the “sole manufacturer” and sometimes as the “sole agent” of “Medical Lake Soap,” and often mentioned that the Medical Lake salts incorporated within the soap cured indigestion, headaches, rheumatism, kidney troubles and catarrh.  Because of the local or territorial nature of most Nineteenth Century businesses, ownership rights to the Medical Lake salts and contract arrangements for their use appear to have always remained divided among many different companies. Yet, the modern histories of the Washington locale itself never once mention Ms. Osterhout in the story of Medical Lake.

osterhoutea-4-1906-1amedicallakewa

The wonders of Medical Lake, WA, a lake in eastern Washington State close to Spokane, WA, appear to have sprung upon the collective consciousness of the country in approximately 1880.  At that time, as reports of murders by Indians of local white families near Spokane, WA – by then classified as “unconfirmed” – were beginning to subside in national newspapers, new stories touting the medicinal properties of a strange lake in its vicinity began to circulate.  Among the earliest such articles was a paragraph labeled “A  Mighty Queer Lake” that showed up at the bottom of a column in a St. Louis paper, ostensibly reprinted from a Springfield, MO paper1.  It describes the Lake as one where “the water is clear and of a dark color … [and the] “slightest breeze … lashes the water into foam which makes a superior soap” and boasts about it that “besides curing skin diseases of men, [it] lays out nervous troubles, rheumatism, paralysis and similar ailments.” After morphing into a column, the same article came to be reprinted time and again over the next fifteen years in papers all over the nation.  The embellished article adds a sentence near the top “There is hardly a disease it will not master,” and bulks out with anecdotal paragraphs concerning an adventurous shepherd who had taken his sheep for a bath in the lake and then noticed that not only were the sheep cured of the dreaded sheep disease “scab,” but that he had recovered feeling in the “useless” arm with which he had bathed his sheep. No matter when reprinted, the article always indicated that these medicinal properties had come to be recognized “some two years ago.”  Since advertising was undifferentiated from news in those days (as, it seems, it is again these days), these articles always materialized in the news columns, were unsigned, and were usually attributed as being reprinted from an article originating with another paper at some distance removed.

osterhoutea-4-1910c-4medicallakewa

By 1882, several different people in different cities were advertising as agents for Medical Lake salts, soaps and remedies, and one article even suggested that Medical Lake had emerged as the Saratoga Springs of the West, already attracting 5000 visitors a year.  By 1884, various states were chartering Medical Lake remedy companies of one sort or another, and rival Medical Lake agents were publishing ads denouncing each other’s falsity.

osterhoutea-16a1cmlmcoad-chicagoinneroceanjan111885-p7

CHICAGO MEDICAL LAKE MFG. CO. 1885 AD

In November, 1884 a single cryptic sentence appeared in the Portland, OR Morning Oregonian: “A Chicago company will control the curative waters of Medical lake, Spokane County, for the coming fifty years.”  There was no attribution for this pronouncement, nor was there any identification of the “Chicago company” itself, nor was any subsequent explanation of its meaning offered.  However, this statement followed by only a month the incorporation in Illinois of the Chicago Medical Lake Manufacturing Co., a company which then engaged in a burst of advertising of Medical Lake salts, soap and remedies.  One of the incorporators of this company, a man named McComas, was soon also advertising land for sale in the vicinity of Medical Lake.  A puff book of Chicago’s leading industries from 1885 states about the company that “Mr. E.S. McComas, the secretary of the company, is held in the highest estimation in Chicago for his business ability and his sterling integrity, while he leaves nothing undone to bring before the public the unexcelled qualities of the Medical Lake salts.”  Thus, at least at the beginning of 1885, not only was there some authentic Washington State money potentially involved in the incorporation of this company, there was also a tie-in between the remedies to be manufactured and land ownership in the vicinity of Medical Lake, WA from which the bona fide medicinal salts could be obtained.  At this point, the intentions of all involved in this particular Chicago company might actually have been genuine and honest.

osterhoutea-16b1cmlmcoad-chicagoinneroceanjan131885-p7

CHICAGO MEDICAL LAKE MFG. CO. 1885 AD

Over the next three years, at least five more companies were chartered in Illinois alone to exploit Medical Lake remedies.  Perhaps out of deference to the name of the first company, the next company was called the Tipso Manufacturing Co, although the stated purpose was the same as the first.  The remaining companies all had “Medical Lake” in their given names: the Medical Lake Toilet Soap Co., the Medical Lake Salt Co., the Medical Lake Remedial Co., the Medical Lake Institute, and the Medical Lake Salt & Soot Co.  Another member of the McComas family was part of the Tipso incorporation as well, so someone with some link to the Washington State area still had some involvement in that transaction. A character named Frank Johnson was the second of the customary three named incorporators of the Tipso company, and was an incorporator in all but the last-named of the other Medical Lake companies.  He subsequently purchased McComas’s share of the Tipso Co. and used it as the basis for his Medical Lake remedy empire.  Despite the flurry of charters of Medical Lake remedy companies, Frank Johnson served as the operating chief of the single office that all but the last-named company apparently maintained together.

osterhoutea-6a-1886-1chicagotribune-sep11886-p8     osterhoutea-20aiaad-desmoinesresgister-jun131886-p7

FRANK JOHNSON’S MEDICAL LAKE SOAP MFG. CO.  1886 ADS

E. A Osterhout enters this story through Johnson, for he employed E. A. Osterhout as his clerk.  While she later downplayed her involvement, she may have had a larger role in Johnson’s dealings, since she also is listed as an incorporator, along with Frank Johnson, of the Medical Lake Remedial Co. in August, 1886.  Yet, most significantly for her, she was also an incorporator, in January, 1888, of that last company listed above, the Medical Lake Salt & Soot Co. of Chicago, which did not include Johnson as an incorporator.  The distinction in incorporators later became relevant because it eventually transpired that Frank Johnson was not an honest man. In March, 1888, he was dragged before a Chicago magistrate by one of his unhappy investors, for Johnson, who had come to Chicago from St. Louis in 1884, raised his venture capital for his Medical Lake companies in a singular manner.  Covering his trial for the Chicago Tribune, a reporter wrote: “He has proved himself quite a Lothario among several Chicago ladies.”

His modus operandi seems to have been to first select a boardinghouse where there were at least two or three marriageable ladies possessed of a desirable little sum in the way of dowry. On the strength of a fair appearance and a suave address he soon managed to bring his toilet soap under the notice of his intended victims. A judicious bestowal of one or two cakes of soap, which by the way was highly scented, led the conversation to the point of soapy adulation where an avowal that without the lifelong companionship of the gentle recipient of his soap-cake [,] himself and his company would vanish into thin, frothy bubbles. After giving himself away in this open-handed fashion his next move was to influence his fiancée to invest her little capital in the stock of the company. (Chicago Tribune, March 1, 1888, p. 5)

One of the many ladies jilted by Johnson sued for the return of her money, and Johnson’s house of cards collapsed. He wound up jailed for about three weeks until he returned enough of the plaintiff’s money to free himself, but then permanently disappeared from the Medical Lake remedy history.

OSTERHOUT BUSINESS LISTINGS

osterhoutea-4aad-chicagodirectory-1887

CHICAGO BUSINESS DIRECTORY 1887

osterhoutea-5aad-polkmeddir-1896

 NATIONAL MEDICAL DIRECTORY 1896

Yet, even as Johnson was being brought to trial, the same newspaper account cited above cautioned: “Since the execution was levied on him, Johnson has been doing business under the name the Medical Lake Company, which should not be confounded with a Medical Lake goods establishment .. managed by E. A. Osterhout.” Since E. A. Osterhout, who by this time was “managing” her own remedy business apparently under that last corporate charter issued, was also at the same time employed as Johnson’s clerk, she actually testified at one of the court sessions of Frank Johnson’s trial. It is her only first person appearance in the historical record, and it illuminates nothing about her. She was described by one newspaper as a “young attractive business lady” and by a second as “a business-like young lady.” Other than faintly damning Johnson, the gist of her testimony was:

she was engaged as general clerk by Johnson in his palmy days, when a new style of company was a matter of every day occurrence. … that Johnson tried every artifice to persuade her to invest in one or other of his Medical Lake ventures, but that she refused to subscribe a cent… Her suspicions were aroused at the absence of business … there being hardly enough money coming in to pay for the ink consumed in writing the names of Frank’s many titles and companies … [She eventually] resolved to go into the soap business on her own account, still believing the product had some intrinsic value.” (Chicago Tribune, March 3, 1888, p. 12)

The reports of her trial testimony leave more unexplained than they reveal.  While emphasizing her youth and smart appearance, they fail to disclose how Ms. Osterhout first met Mr. Johnson or how she came to be his clerk, and stress her cleverness at avoiding his clutches while apparently overlooking the possible implications of her involvement as an incorporator of one of Johnson’s ventures.  Most strikingly, they leave remarkably unclear how she disentangled her Medical Lake “goods” operation from Johnson’s so quickly and so definitively that no shadow of blame ever fell on her. Further, while such information might strictly have gone beyond the boundaries of courtroom reporting of Johnson’s trial, there is no explanation of when or how she had acquired the money that she evidently invested in the Medical Lake remedies, whether with Johnson or by herself, or how she had emerged fully grown with office skills in Chicago, so far from the Albany, New York area where she had been born.

osterhoutea-6a-1906-1homeopathicenvoyboericketafelmag-11-06-v16

E. A. OSTERHOUT 1906 TRADE JOURNAL AD

Nevertheless, after Johnson’s hurried exit in March, 1888, Osterhout continued her business, advertising her remedies occasionally in trade journals and periodically soliciting for territorial agents in the “Male Help Wanted” column of local newspapers.  Her firm impressed its distinctive “E. A. O.” cancel on both the 1898 and 1914 revenue issues.  A last indirect indication of her continuing presence can be gleaned from a federal census record that shows a Thomas and Emiley Wight (now listed as born in 1853) still living in Ward 3 of Chicago in the spring of 1910.  While state death records show that a Thomas Wight living in Ward 3 of Chicago (whose occupation was listed as a “mail order clerk”) died in Chicago on November 12, 1910, E. A. (Emily, Emila, Emiley) Osterhout/Wight thereafter vanishes from all extant official records, and no clear date can be established on which either her business or her life ended.

REPRESENTATIVE 1914 PROPRIETARY REVENUE E.A.O. CANCEL VARIETIES

osterhoutea-2-rb48-t1-1915-03

     osterhoutea-2-rb48-t1-1915-12b     osterhoutea-2-rb48-t1-1916-03c

HORIZ. INITIALS, MONTH AND YEAR DATE

osterhoutea-2-rb48-t2-1915-01-23-2

HORIZ. INITIALS, MONTH, DAY AND 2 DIGIT YEAR DATE

osterhoutea-2-rb48-t3-1914-12-19     osterhoutea-2-rb48-t3-1915-01-07

VERT. INITIALS, MONTH, DAY AND 2 DIGIT YEAR DATE

osterhoutea-2-rb48-t4-1914-12-01

HORIZ. INITIALS, ALL NUMERICAL DATE

Curiously, the histories of Medical Lake, Washington credit only one person as operating a factory to manufacture Medical Lake salts and soaps.  He was a local resident named Stanley Hallett who lived from 1851 to 1926.  Hallett’s career makes him a local notable.  He emigrated from England as a titled English noble, but dropped the appellation “Lord Hallett,” in the United States.  After working as a merchant in California, he settled in Medical Lake, WA in 1877, where he soon became the biggest land owner and town booster as well as the town’s first mayor.  He later served as a Spokane County commissioner, and a Washington State senator.  In 1900, he built himself a grand manor house, Hallett House, complete with towers and crenellations that still stands as an attraction today.

osterhoutea-50a-2halletthouse    osterhoutea-50a-3halletthouse-paintingbyzvanessahelder

PICTURE AND PAINTING BY ZAMA HELDER OF HALLETT HOUSE

He was also instrumental in arranging that the Eastern Washington Asylum for the Insane be built on the shores of Medical Lake, WA.  As an enormous and imposing building, it boosted the reputation of the area as a medical resort, and helped the region to flourish in this capacity until the end of World War I, when the growing availability of automobiles and the depletion of the Medical Lake minerals made other destinations more popular.

osterhoutea-4a-1easternwashingtonasylumforinsane-1909

Hallett’s company was the Medical Lake Salts Manufacturing Co.  It maintained offices in Spokane, WA and New York City, and exhibited at the Lewis and Clark Exposition of 1905 in Portland, OR.  Because it appears to have directly advertised to the public much more than did Osterhout, its ads did not discuss who had the rights to, or proprietorship of Medical Lake’s medicinal waters, but rather, assured that the Medical Lake salts were “nature’s remedy” not a patent medicine.

osterhoutea-6b-1900c-1halllett-medlakesaltsmfgco

HALLETT’S MEDICAL LAKE SALTS MFG. CO. 1900c AD

osterhoutea-6b-1903-2hallett-medlakesaltsmfgco-kingstonny-february251903

HALLETT’S MEDICAL LAKE SALTS MFG. CO. 1903 AD

osterhoutea-10ahallett-1a   osterhoutea-10ahallett-1c

HALLETT’S MEDICAL LAKE TABLETS

While E. A. Osterhout is still listed in the major druggist trade directory issued for 1917 as operating Medical Lake Soap & Salt in Chicago, a 1916 article in the National Druggist magazine indicates that Medical Lake Soap was then being manufactured by Dwight T. Sprague & Co. (which also produced Medical Lake (“Skookum Chuck”) Salts as well as Marvello Beauty Crème and Beau Monde Face Powder).  Perhaps this article shows that Hallett had sold out to Sprague, but, more likely, simply demonstrates that Sprague was yet another Medical Lake competitor.  Yet, considering that both Osterhout and Hallett were attempting to cash in on the medicinal properties of Medical Lake, it is perplexing that they, as major Medical Lake product producers, never clashed in the manner that Andreas Saxlehner did with his competitors.  Such a record would illuminate how the Medical Lake waters were actually exploited and by whom. At this remove of time, one can only speculate that the terms “medical, lake, soap and salt” even then were regarded as so generic that none of the principals of any of Medical Lake remedy companies ever felt the urge to try to legally bar others advertising the same kind of products from mining the same rhetorical terrain.  Therefore, sadly, E. A Osterhout remains a historical enigma.

x———-x

¹     The article appears one column over from a prescient article entitled “Cigarette Smoking – A Vice That Is Sapping Out Young Manhood” which postulates       that because of smoking cigarettes “[t]he next generation will be born of puny-chested, slim-legged, small-necked chaps” who are nothing but “idiots or monkeys.”

© Malcolm A. Goldstein 2017

Standard
N

Nervease Co.

NERVEASE CO., MANUFACTURER

nerveaseco-2-rb23c

nerveaseco-2-rb23a     nerveaseco-2-rb23bvc

NERVEASE CO. BATTLESHIP REVENUE CANCELS

Nervease was one of the earliest patent medicines specifically advertised as a headache and fever remedy. The principal ingredient of virtually all of these pioneer products, classified in medical terms as analgesics (pain relievers) or antipyretics (fever reducers), was acetanilide. Most of those who used Nervease, and the many other proprietary medicines like it, never realized that acetanilide was a poison that could cause their death. However, acetanilide’s potentially poisonous nature became a major flash point during the Pure Food and Drug Act wars. Since proprietary medicine manufacturers regarded their formulae as private, they did not disclose their ingredients. From the end of the Civil War, when proprietary medicines became readily available, to 1906, they successfully blocked governmental efforts at all levels to force such disclosure. Even after the original 1906 federal legislation mandated listing contents on the packaging, product advertising remained completely unregulated. Not only did manufacturers who complied with the law by listing acetanilide in small print not warn of its potential harm, some even affirmatively averred in much larger print that their products contained no poison, or even in the accompanying literature denied its presence. The fight to banish acetanilide as medicine was one of the longest and most difficult waged by the Food and Drug Administration, continuing for a full generation after 1906.

nerveaseco-50-4aad-newhavenbulletin-1894

1894 AD

Yet, acetanilide was regarded as a miracle drug when it was first found to be an antipyretic at the end of the Nineteenth Century. Actually, that entire century was an age of astounding chemical discoveries. As coal became an important source of fuel, the entire field of organic chemistry took shape, for the clever use of coal’s waste products, most notably coal tar, led to the discovery and exploitation of a multitude of useful chemical compounds. The earliest significant coal tar derivative was aniline discovered in 1826. It soon became the basis of synthetic dyes, giving rise to an entirely new industry. Acetanilide, discovered a few years later, also found use in the dyeing industry, but, by mid-century, had proved to be of only minor importance.

nerveaseco-6a-1894-1aad-teachersworld

1894 AD

Suddenly, when acetanilide’s ability to reduce fevers was discovered in 1886, it was heralded as the newest wonder of the age. As with many such amazing drugs, the discovery was purely serendipitous. Arnold Cahn and Paul Hepp, two young assistants in the department of medicine at the University of Strassburg in Germany were assigned by the superior, Adolf Kussmaul, to investigate cures for intestinal worms by dosing patients with naphthalene, itself another coal tar derivative, which had already proved useful as an internal antiseptic in certain limited circumstances. However, the test results proved problematic. Cahn and Hepp found that the drug they were administering did not reduce worm infestations, but did reduce the fevers of patients, an effect never previously observed when treating subjects with naphthalene. Since naphthalene had never been shown to influence body temperature, Cahn and Hepp ultimately reasoned that they must have actually administered another substance to their patients. When they requested their chemical supplier, Kopp’s Pharmacy of Strassburg, to re-check its records, they discovered that Kopp’s had, in fact, sent Hepp acetanilide. Once Cahn and Hepp published their findings hailing the discovery of a new antipyretic, an acetanilide manufacturing industry immediately sprang up in Germany. Its low cost of production meant the proprietary medicine industry in the United States quickly adopted it both as an analgesic and an antipyretic, and obstinately clung to it as a principal ingredient of these classes of proprietaries long after its poisonous quality had been revealed.

nerveaseco-6a-1896-1

1896 AD

To those who ingested large quantities of acetanilide, the danger manifested itself in the form of cyanosis, a bluish cast to the skin which people develop when their bodies are seriously starved for oxygen. When these cyanotic patients reported that they had recently taken the new acetanilide-based headache remedies, doctors quickly discovered that when acetanilide is metabolized by the body, it partially transforms to aniline. From treating a generation of poisoned dye plant workers, doctors already knew that aniline altered the structure of hemoglobin, the complex protein in the red cells of blood which carries oxygen from the lungs throughout the body. Aniline induces methemoglobinemia, a condition in which methemoglobin — oxygen binding sites structures (heme groups) containing ferric ions [FE+3] rather than ferrous ions [FE+2] — begins to supplant the normal four heme groups within the hemoglobin protein molecules as they travel in the blood through the lungs. Ferric ions (which eventually were demonstrated to have their crucial d sub-shell valence orbitals, where the oxygen electrons would orbit when they bonded, blocked by its own higher energy electrons) do not form the requisite bond with oxygen that the ferrous ions in hemoglobin do. As available oxygen binding sites fall within the hemoglobin protein, the shape of the entire hemoglobin protein alters causing the remaining ferrous ion heme groups to hold their own oxygen molecules more tightly, further reducing the normal oxygen exchange rate until the body can literally starve for oxygen. Blood starved for oxygen reflects blue, hence the cyanosis that doctors observed.

nerveaseco-6a-1899-1a

 

1899 AD

Despite a quickly accumulating body of medical evidence demonstrating its danger, and warnings published in medical journals from the 1890s to the 1930s, acetanilide was cheap and accessible, so the proprietary industry capitalized on its availability and continued to use it for fifty more years. The argument made by the industry then, as it is still made in certain kinds of disputed cases today, is that even if a product is poison, if its administration is properly controlled, the benefit experienced by the patient outweighs the potential harm. The difficulty in the case of acetanilide was that it was readily available and control, in the form of dosage, was left completely in the hands of the individual consumer.

nerveaseco-6a-1900c-2

1900c AD

Nervease was a typical fever reducer. It manufactured by the Nervease Co. in the Jamaica Plains district of Boston. The proprietor of the Nervease Co. was Joseph B. Locke, a pharmacist who otherwise ran a modern drugstore. In 1892 he is recorded as having petitioned the City of Boston for the latest in technology, an electric street light, to illuminate the corner where his store was located, and, in 1899, his store was praised in a trade magazine as featuring the latest and most up-to-date features:

nerveaseco-50-1apharmera-10-26-99

However, little now can be ascertained about Locke himself, perhaps, in part, because he bears a fairly commonly occurring name. While there are historical entries about many different Joseph Lockes, this particular Joseph Locke, having never been a grandee of the proprietary medicine industry, was never profiled in the kind of Whos-Who-type booster books of the pre-World War I era. Census records do outline the barest bones of his life. They reveal he was born in Waltham, Massachusetts in 1857 of parents, Hozea and Elizabeth Locke, who themselves had come from Maine. In 1882, he married Marietta Skinner, and had a son, Edward. His wife died in 1897. In 1900, his son still lived with him, but by 1910, he listed himself as a widower, living only with a housekeeper. By 1920, he was living with his son’s family and in 1930 he disappears even from his son’s household. Possibly he died as late as 1936. Modern records reveal that his grandson and namesake died in 2003 at age 86.

nerveaseco-6a-1900c-1

1900c Ad

As a product, Nervease gained greater prominence than its maker. Locke began to place ads for it around 1890, just as soon as acetanilide became available commercially, and by 1893, Locke was actively promoting Nervease in a grand manner:

nerveaseco-50-2anerveaseinwindow-ampharm-1893-v23

By 1898, Locke was employing an ad agency to handle the Nervease account, and it was a significant enough client so the advertising trade papers took note when  J. J. Riegel of Boston carried its business with him during his move from the Pettingall & Co. ad agency to the newly formed Walter C. Lewis Co. ad agency.

nerveaseco-6a-1901-1

1900c Ad

Despite the continual warfare over the use of acetanilide and the gradually more stringent standards, hewing toward “truth in advertising” by insisting on demonstrable scientific evidence to support advertised claims imposed by amendments to the Pure Food and Drug Act, Nervease continued to be manufactured and sold for almost fifty years with acetanilide as its principal medicinal ingredient. In 1939, the government finally brought this action against Nervease:

nerveaseco-50-3afdajudgmentagainstnervease-1939

Two significant observations shed light on this proceeding and decision. Note by this late date the company was both disclosing that acetanilide is present in the medicine, as was required by the letter of the law, and even was counseling in its literature that too many doses could not be taken too close together in time, as medical prudence had by that time certainly suggested. Nevertheless, the government alleged that the false and misleading claims lay in the company’s reliance on testimonials only to prove medical efficacy and the potential for poisoning in the dosage frequency and duration suggested in the company’s literature.

nerveaseco-10-1a     nerveaseco-10-1b

     BOX

Note also that the legal action was brought in the peculiar way authorized in the 1906 act, not against the company, but rather in the form of a “libel,” or a literal seizure action of the product itself. The company did not contest the government’s charge, as the small proprietary companies like the Nervease Co. often did not. The court would then enter judgment against the product seized by the government and order it destroyed. This form of litigation did limited harm to the company and conveyed limited benefit on the public. The company’s business was disturbed only to the extent that it lost that particular seized shipment of its goods and could otherwise still continue with its established business patterns. The public good was served to the extent that the judgments were published and distributed by the FDA, and read and heeded by medical professionals and the public. Fearing such bad publicity, wiser proprietary companies altered their ingredient formulas or advertising literature after a single judgment entered against them.  A second similar judgment had to be entered against Nervease in 1951.  After that encounter with the law, Nervease Co. disappears from the public record.

nerveaseco-10-2

BOX

Ultimately science itself, not the law, effaced acetanilide as an ingredient in headache and fever reducers. In 1948, doctors finally established that the analgesic and antipyretic properties of acetanilide were contained in paracetamol, the other by-product produced when acetanilide is metabolized in the body. Paracetamol is equivalent to acetaminophen, which by then, could be manufactured cheaply and safely by itself. No longer did any manufacturer have to use acetanilide to produce the relief the antipyretics and analgesics were meant to provide.  Thus, cost efficiency rather than medical safety removed acetanilide from consumer products.  Self-medicators and current buyers of over-the-counter medications should pay heed for the same dangers still lurk in the market place.

©  Malcolm A. Goldstein 2016

Standard
M

MERCHANTS’ FREEZING AND COLD STORAGE CO.

MERCHANTS’ FREEZING AND COLD STORAGE CO.

MerchantsFreezingCo-2-RB27(ProvidenceRI)

MERCHANTS’ FREEZING AND COLD STORAGE CO. CANCEL

Fate decrees that mortals be unable to complete certain tasks, and that characters like Sisyphus – punished by the gods – must labor at them ceaselessly but futilely. Those who seek completion, control and closure of such monumental undertakings are doomed to disappointment. In their Battleship Desk Reference compilation of cancels used by companies on Spanish-American War proprietary revenue stamps, Mustacich and Giacomelli posited that the known universe of cancels encompassed the pharmaceutical industry and allied trades. Having examined still-extant masses of the millions of proprietary battleship revenues cancelled between 1898 and 1901, as well as meticulously scoured contemporaneous source material, they estimated that there were some 6,000 manufacturers of patent medicine and about 40,000 retail druggists. Self-admittedly incomplete, their tome enumerated 18,000 listings. Some listing paired known cancels with known manufacturers, distributors or retailers of pharmaceuticals. However, most listings simply juxtaposed identified letter cancel combinations with known company names. Lacking empirical evidence to conclusively link them, the authors were obliged to leave those names essentially arranged in long lists of parallel columns, one column being the letter cancels and the adjacent column being a list of companies whose initials might fit the letter combinations.

MerchantsFreezingCo-3RV2     MerchantsFreezingCo-3RV4

MERCHANTS’ FREEZING AND COLD STORAGE CO. IN 1907

Once in a while, as battleship proprietary revenues turn up among philatelic offerings, an interested observer views a cancel which completely confounds expectations. The stamp pictured at the top of this column is such a cancel, since it reveals enough of a company name to suggest a proprietary stamp revenue user who operated outside the known universe created by Mustacich and Giacomelli. Its existence hints that there were other users of the battleship proprietary revenues, such as freezing and cold storage companies, whose principal business lay outside the pharmaceutical world and whose connection to that world, if any, was tangential. The appearance of such a cancel seems to demonstrate that, even taking into account their ambitious 18,000 listings, Mustacich’s and Giacomelli’s view of the businesses which cancelled proprietary revenues is far too narrow, and further, that any quixotic attempt to circumscribe the entire universe of battleship revenue proprietary cancels in order to describe them all is utterly impossible and doomed.

ArkansasConstructionCo-2-RB27a(PropUsedAsDoc)

A. L. HOWE’S INITIALS ON A SIMILAR

PROPRIETARY REVENUE STAMP

Of course, there is an easy explanation for the existence of this stamp, and Occam’s Razor demands that it be offered. Perhaps the stamp was simply used incorrectly. The value pictured immediately above is similarly a 2¢ proprietary revenue. Since 2¢ was the amount of documentary tax paid to negotiate a bank check, and there was a red 2¢ documentary value, which was likewise intended to be cancelled with the name of the user to prove payment of the tax, the explanation for that pictured stamp’s use may be no more complex than that a proprietary tax stamp was substituted on a company bank check for a documentary tax stamp, either in error or out of necessity because of the lack of documentary revenues. Both such circumstances are known to have occurred and examples of incorrect uses exist.  A larger view of the stamp shown immediately above, pictured as found, proves that nineteen days after the imposition of the tax, A. L. Howe’s initial cancel on that stamp in his capacity as Assistant Treasurer of the Arkansas Construction Co. was actually an incorrect use of the proprietary revenue stamp in place of a documentary revenue stamp:

ArkansasConstructionCo-3-1898-2RV

PROPRIETARY REVENUE MISUSED AS

DOCUMENTARY REVENUE

Positive identification of that stamp as an erroneous use can only be made, however, because the entire document on which that stamp was used happened to survive. Without at least part of the check remaining with the stamp, the proper context of the cancel could not be established.

MerchantsFreezingCo-1RV

1907 REFRIGERATION DOOR TRADE JOURNAL AD

BOASTING MERCHANTS’ FREEZING CO. AS CUSTOMER

The more intriguing explanation is that the stamp was used correctly to pay the proprietary tax imposed on wine, which was its intended use. Sale of wine containers over a pint required payment of 2¢ tax. While admittedly unlikely, perhaps the company had a stock of such wine in its warehouse when the tax was imposed and stamped it to allow the wine to continue in commerce. Another user of proprietary stamps already profiled in this column, Clayton W. Holmes, found his way into the refrigeration business as an adjunct to the proprietary cosmetic he was producing. Maybe the connection between the cold storage business and the pharmaceutical business was more natural than has previously been considered. While one can idly speculate, until another example of the cancel turns up, either on a company check or on some wine bottle, such thoughts must remain conjecture.

MerchantsFreezingCo-7RV     MerchantsFreezingCo-8RV1

PORTRAITS OF I. B. MASON

Improbable as its existence might be, the stamp has survived, and, like other proprietary cancels featured in this column, its presence offers an opportunity to explore yet another facet of life in the Gilded Era in the United States. The story of the Merchants’ Freezing and Cold Storage Co. is yet another tale of Nineteenth Century ingenuity, not unlike the tales which have been chronicled previously in this column tracing the origins of today’s pharmaceutical industry. The company was the brain child of Israel Bowen Mason, President of I. B. Mason & Sons of Providence RI, who conducted a thriving and successful pork slaughterhouse (the cattle slaughtering business having already moved west), but was known to by his contemporaries as a “manufacturer and dealer in pork products.” It was he who first envisioned the potential for public rental of cold storage space in Providence.

MerchantsFreezingCo-6RV

I. B. MASON & SON AD, 1889

Born in East Killingly, CT in 1832, Mason had settled in Providence RI in 1850, married in 1854 and raised five children there. He lost his business in a devastating fire in 1869 and rebuilt it bigger and better. In 1877, after he brought his older son Edward into his business and changed the name of the business to I. B. Mason and Son, he left Edward in charge and, to rebuild his health broken from his exhausting endeavors, vacationed across the United States and in Europe in 1877 and 1878, using the time in Europe to cement connections with his European buyers. He lived luxuriously and the interior decorator of his house casually dropped his name in the decorator’s own ads.

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I. B. MASON’S HOUSE, PROVIDENCE, RI

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DECORATOR’S AD DROPPING I. B. MASON’S NAME

PRINTED IN 1892 NYC GUIDEBOOK TO FAMOUS SITES

He acted as an incorporator of a homeopathic hospital for the poor in 1878, and then served as a Republican representative for several sessions in the state assembly from 1879 to 1883. In 1888, he brought his other son, William B., into his business, and changed the name of the business to I. B. Mason and Sons. He was a trustee of his Unitarian church as well as landlord in 1892 to a Jewish synagogue. By 1889, Mason was also director of one local bank and President of the newly organized Rhode Island Mortgage and Trust Co. In short, I. B. Mason had grown to the stature of a pillar of his community.

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I. B. MASON IN 1907

After experimenting for a year or two around 1890 with public rental of the cold storage space in his own pork plant, I. B. Mason realized that advances in refrigeration technology could help him exploit Providence’s location to make it the largest central warehouse and cold storage depot for produce and products traveling in, out and around New England outside of Boston itself. Using his positions as bank president and bank director, Mason enlisted several other banking colleagues, together with local dealers in fresh produce, as well as his sons, to raise the necessary financing to realize his idea. The Merchants’ Freezing and Cold Storage Co. was established in 1893. It functioned as a quasi-public utility, since its charter forbid it from dealing directly in the lines of goods or produce for which it provided storage services, and thus it never competed by self-dealing with the businesses of the clients for whom it provided storage space.  (This restriction in its charter, common to such warehouse businesses, might rule out the possibility that the proprietary stamp cancellation was anything but an improper usage.)

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FLOOR PLAN OF MASON’S STORAGE BUILDING

Rather than converting older warehouse space, Mason had the new company’s storage building specially designed and constructed to make the greatest use of newly developed refrigeration technology. The building was planned with its normal warehouse storage on the outer side, the elevators and receiving area in the middle, and the cold storage and refrigeration areas on the other side of the receiving area segregated by corridors from the outside walls of the building to prevent heat radiation. Next to that refrigeration area were the building offices as well as the tanks that held the salt brine which circulated as the cooling agent through the refrigeration area. Beyond the tanks and offices was a separate, slightly smaller building that housed the latest, powerful engines that drove the refrigeration machinery itself. Thus the refrigeration machinery, driven by boilers which generated heat, was completely isolated from the refrigeration area. Depending on the temperature deemed necessary and appropriate to keep it fresh, the arriving produce was assigned to a particular area in the building, either higher or lower in the building, nearer or further from the refrigeration machinery, such as the “apple”, “egg” or “butter” room. Considering that the floors of the building were projected to carry a load of 400 pounds per square foot, the site was specially prepared by driving 3000 piles into the ground each having a bearing capacity of ten tons, and Portland cement concrete was used to pour the foundation. The main storage area was constructed almost entirely out of wood and brick to avoid the much greater heat radiation which metal frame construction would allow. Mineral wool insulation, made by the then recently invented process of blowing hot air through molten slag or rock, was layered into the walls in a manner that created air pockets to trap heat and did not settle onto itself in a solid mass. The building was situated with one side located on a company-owed siding of the New York, New Haven and Hartford Railroad and the other side opening on to a main commercial street so as to provide ease of loading and unloading. No sooner was the original building erected and functioning than demand forced the company to expand the facilities. The company continued to expand the building several more times until 1910.

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1919 COMPANY AD

In 1910, the company changed its name to the Merchants Cold Storage and Warehouse Co, although the principals remained the same. Israel B. Mason died in 1916, but the company carried on. In 1916, Moody’s Railroad Manual offered a brief financial profile of the company:

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After I. B. Mason’s death, his son, William B. Mason (1868-1945), acted as the company’s representative to warehouse trade groups. This W. B. Mason is not the William Betts Mason, who founded the W. B. Mason office supply company in 1898 in Brockton, MA. Rather, this W. B. Mason’s particular achievement is that he chaired a warehouse association committee that analyzed the costs of building and operating a million cubic foot cold storage plant in 1920 and offered a model pricing structure to standardized charge for storage services predicated on these costs. The report received acclaim within the industry at the time and still can be read verbatim on the internet today.

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THE WRONG W. B. MASON

But, while W. B.’s father was lauded and profiled by his own business contemporaries in the kind of civic booster books filed with sketches of noteworthy individuals published by every American town and society during the Pre-World War I era with the purposes of both stimulating commercial interest in growing and competing communities as well as instructing and morally edifying the poor but aspiring masses, much less is discoverable about this W. B. Mason’s life at approximately one hundred years removal in time. Puff books describing the virtues of prominent businessmen disappeared at the same time as women’s bloomers, as World War I damped the belief in the constant progress of civilization that had prevailed before the Great War. Much of the minutiae from which profiles of notable citizens might otherwise be adduced remains cloaked by copyright law which operate to check free reproduction of material published after approximately 1925. While census records do reveal that W. B. Mason was married, had two daughters and was widowed late in life, only odd echoes and shadows of his life barely flicker at the edges of the discoverable records. On August 31, 1908, he received a ticket in Jaffrey, New Hampshire for operating his “automobile without sounding [his] horn,” an event apparently uncommon enough at that time to be recorded in the New Hampshire Secretary of State’s report to the legislature for 1908. In 1924, he took a trip to Bermuda, returning on the passenger ship Empress of Britain on February 24 through the Port of New York. In 1936, an article in the sports section of the New York Times names him as a member of a fishing party that reported a “good catch” of salmon on the Tabusintac River in New Brunswick, Canada, “despite high water and unfavorable conditions.” All in all, this W. B. Mason remains much more indistinct as a personality than his father, I. B. Mason.

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DEFROSTED STORAGE BUILDING IN 1994

I. B. Mason’s building remained a landmark in Providence, RI for nearly a hundred years, even as railroad traffic declined and its centrality as a storage depot faded. The warehouse, originally built as the exemplar of the most advanced technology in 1894 by Merchants’ Freezing and Cold Storage Co, remained, as expanded, an active cold storage site until 1992, when it was finally and permanently defrosted. In 1980, the U.S. Library of Congress documented and photographed the building as an engineering historical site because of its pioneer status in the refrigeration field. However, neither its clever and sturdy construction nor its acclaim as an engineering marvel of its age saved it from urban redevelopment. The building was dismantled between 1998 and 2000, and a condominium now occupies the former site of the building.  Local architectural websites seem to decry the change, and all one can say is sic transit gloria mundi.

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CONDOMINIUM NOW OCCUPYING LOCATION

©  Malcolm A. Goldstein 2016

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Laxakola Co.

Laxakola Co.

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1901 COVER

As Monte Python used to say “and now for something completely different”…

Laxakola Co. went bankrupt and disbanded in 1905.  Chartered as a New Jersey company in 1895, it certainly existed during the period of 1898 to 1901 when proprietary battleship revenue use on its products was required by law. Yet, its story falls outside the very broadly drawn ambit of this blog, for, to date, no battleship revenue stamp has been identified with Laxakola, this company’s principal product, and the Battleship Desk Reference book of Mustacich and Giacomelli, which sets out both letter combination of observed proprietary revenue cancels as well as the names of proprietary medicine companies, does not even list “L. Co.” among such observed combinations. (By comparison, the only four (4) varieties of “L. & C.” cancels listed are identified as belonging to Ladd & Coffin, and 10 companies whose initials are “L. & Co” are listed, although not directly matched, with fifteen (15) varieties of “L. & Co.” cancels).

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LETTER ACCOMPANYING COVER

However, Laxakola’s story is so intriguing and is voiced so well that it merits retelling. It is the story of unmitigated failure and a cautionary tale that not every patent medicine became a million dollar seller.

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CHARLES AUSTIN BATES 1901c

The tale’s narrator was an ad man and entrepreneur named Charles Austin Bates (1866-1936). One of the lesser lauded and remembered Don Drapers of U.S. advertising’s birth, he published his account of Laxakola’s demise in 1906 in “Printers’ Ink,” the first advertising trade journal. It comes down to us today because a drug trade journal reprinted it contemporaneously, and that journal has been reproduced on line1.

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Charles Austin Bates was born in Indianapolis, IN.  Perhaps he was inclined to a life of words because his mother, Margaret Ernsperger Bates (1844-1927), who came from an educated family and began life as a teacher, grew bored with married life as a housewife and became a writer herself.  Publishing under the name of Margaret Holmes, she wrote novels and poetry, and earned a place in several Who’s Who kinds of compilations of her era.  Her last book on the works of Robert Browning was issued only weeks before her death.  A sample poem, while somewhat flowery for today’s taste, displays heartfelt sentiment:

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While Bates’s mother was a prominent personality, his father, by comparison, toiled in the shadows. Little can be said about him other than that he was born in Medina, NY, which lies halfway between Rochester and Buffalo, in 1837, and that by 1865, he had moved to Indianapolis, where he married Bates’s mother. City directories identify him as a principal in Bates & Co., which dealt in flour, feed, coal and wood, and he must have flourished as a merchant for his wife and son to act as independently as they did. He remained in Indianapolis where he died in 1914.

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PARENTS OF CHARLES AUSTIN BATES

Bates himself began working as a printer after graduating from high school in Indianapolis, bought a local weekly newspaper at age eighteen and opened his own printing shop at age twenty.  That newspaper subscribed to Printers’ Ink, and when Bates read in its pages that John Wanamaker, the department store merchant, had paid a man named John Emory Powers $10,000 a year to write his ads, he decided that he wanted that life for himself: “My God! Ten Thousand Dollars a year! Why, our postmaster received $3,500 a year and drove to his job every morning in a two-horse surrey!”  Bates soon began to write ads for local businesses and then advertised himself as a copywriter in Printers’ Ink.  The responses he received were favorable enough for him to move to New York City in 1893 to establish his own advertising business.  His mother moved to New York City at the same time as her son and remained there until her own death more than thirty years later.

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LAXAKOLA BROCHURE WITH LETTER AND COVER – PART 1

Bates picked the perfect moment, at the opening of the “Gilded Era,” to enter the advertising occupation.  Industrialization had produced wealth in America, and innovations in communications and transportation had made it practical to consider the entire United States as a single market.  Advertising had to grow and change to keep pace with the continuing expansion of this market.  Essentially, Bates was no more or less qualified than anyone else to become a driving force in this burgeoning industry. He approached the opportunity with boundless self-confidence, optimism and enthusiasm.  While building his advertising business, he secured himself a job as a columnist at Printers’ Ink, began to critique others’ advertising campaigns, and through his frequent commentaries began to be accrue influence as an expert in the world of advertising.

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LAXACOLA BROCHURE – PART 2

In advertising, Bates favored a simple, straightforward style of writing that emphasized price and described the product in basic English. He once stated: “Advertisers should never forget that they are addressing stupid people. It is really astonishing how little a man may know, and yet stay out of the way of the trolley cars.”

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LAXACOLA BROCHURE – PART 3

Within two years after moving to New York City, Bates claimed he was earning $20,000 from his copy writing and spending $10,000 to advertise himself further to other potential advertisers. In the first years of the 20th Century, it is hard to overstate his ubiquity as an advertising voice. In addition to writing for Printers’ Ink, he also published his own house organ, Current Advertising, which contained his trenchant comments on the advertising campaigns of others. He wrote book after book. A partial list of the books he published includes:

Good Advertising (1896);

American Journalism From The Practical Side (1897);

Short Talks On Advertising (1898);

The Art And Literature of Business (6 vols.) (1903);

Cheer Up and Ten Other Things (1909).

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LAXAKOLA BROCHURE – END

Through his ad agency, in a series of books published in and around 1899, he even offered pre-packaged advertising campaigns for various kinds of retail sales to which small businesses could subscribe by paying a fee in small installments. One industry for which Bates prepared and printed such an advertising campaign was the hardware business. After a twenty page introductory chapter on how to go about advertising a hardware store, the great bulk of the text was devoted to roughly three hundred pages of hardware illustrations, followed by twenty packed pages of short catch phrases. For example, one of the catch phrases proposed was: “Sometime Mr. Burgler will drop in on you, unexpectedly, and informally, and you’ll wish you had purchased one of those high-grade revolvers we called to your attention the other day.”  The book ended with a register for recording advertising contracts, and a twelve month ledger for recording daily sales and advertising costs.  The book was sent along with a separate booklet of coupons which the advertiser could return to Bates’s agency to request such services as a critique of advertising copy, or to order the Bates Agency monthly house circular on advertising, or to order, for an additional charge, cuts of the ad illustrations and copy texts which they could place in their own local papers.  Bates was no fool.  The book was not sent to the advertiser until the whole subscription fee (at the time $25) was remitted to the Bates Agency, and all return mailings answering coupon requests or enclosing cuts were either pre-paid before mailing or sent Collect On Delivery by the U.S. Postal Department.  No credit.  No exceptions.

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 THE HARDWARE BOOK – SUBSCRIPTION RULES

Other books in the same series were:

The Bakers and Confectioners Book;

The Clothing Book;

The Coal Book;

The Drug Book;

The Dry Goods Book;

The Furniture Book;

The Grocery Book;

The Jewelry Book;

The Laundry Book;

The Liquor Book;

The Men’s Furnishing Book;

The Real Estate and Insurance Book;

The Shoe Book;

The Tailoring Book;

The Wall Paper Book;

plus 18 volumes issued under the general title “Retail Advertising”, which includes:

The Piano Book;

The Optical Book;

and the Carriage and Harness Book.

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THE HARDWARE BOOK – SAMPLE AD CUT AND TEXTS

By 1899, Bates was rich enough to take his flyer on Laxakola.  He lost big, and moved out of the copywriting phase of advertising from that time on, but, as a successful businessman and a perpetual optimist, it hardly fazed him.  He had already sold his advertising holdings and become, in effect, an early venture capitalist. He organized the Keystone Syndicate, which, in turn, launched the Fidelity Bond and Mortgage Co in 1909, an organization of which Bates became President. This investment brokerage firm continued to prosper and advertise up to, and into, the Depression.

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CHARLES AUSTIN BATES 1916c

Bates also played a major role in financing the Colorado-Yule Marble Co., which was capitalized at $10,000,000 in 1905 and employed seven hundred workers to quarry and market the largest marble deposit in North America, located in a newly formed town called Marble City, CO that by 1911 boasted a population of 1700 inhabitants.  The Company’s marble graced the facades of many important public buildings built in that era, and was ultimately utilized in both the Lincoln Memorial and, ultimately, in (what is now known as) the Tomb of the Unknowns in Washington, D.C.  Bates served as the chairman of the company’s Executive Committee.  He also garnered a separate income as Vice-President of the Crystal River & San Juan Railway Co. which traversed the twelve-mile route that connected the quarry to the main trunk railroad lines.  The Marble Company prospered until 1916, when demand for marble to build monuments slackened as U.S. entry into World War I began to appear inevitable.  The company’s extremely large developmental capitalization maintenance cost then outran market demand for its product, and it went into receivership.  Whether by this time Bates was still an investor is unclear, but he was not present at huge three-day party excursion trip the company staged and hosted in Marble City in 1915 for the 525 delegates to the National Convention of the Retail Monument Dealers Association then taking place in Denver.  Even if it never threw another party that showy, the town of Marble, CO still stands in the Crystal River valley on the slope of the Elk Mountains, some two hundred miles southwest of Denver, and reported a population of 131 in the 2010 census.  Since 2004, Bates’s former mine has been owned by the Polycor, Inc., a Canadian corporation.

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COLORADO-YULE MARBLE CO AD 1915c

By 1908, Bates also had formed the Rutherford Rubber Co., of which he was also President. That company ultimately morphed into the Sterling Tire Co. of Rutherford, NJ. Bates remained involved in directing its affairs until he sold his interest in 1921. For the last fifteen years of his life, he acted as an independent advertising and promotional consultant to various companies. Married twice, with two children from his first marriage, he was an active member of many significant social organizations of the times, including the New York Athletic Club, the Columbia Yacht Club, and the Longshore and Yountakah Country Clubs. One quotes of his is found today on every positive motivation website: “it is the trouble that never comes that causes the loss of sleep.”  Bates may have harbored such anxieties from time to time, but he never let them show!

———-x

1.        This author thought that he was the first in a hundred years

to excavate this gem, but diligent research shows that it has

been reproduced once before in a blog devoted to design of

product packaging a few years ago.

———-x

[Double click on illustrations to expand them for better viewing]

© Malcolm A. Goldstein 2015

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Victor Klotz, Manufacturer

VICTOR KLOTZ, MANUFACTURER

Virtually every denomination of battleship revenues can be found stamped with the initials “V. K.” This article explores the implications of two questions:

1) who was V.K.; and

2) why do these initials appear on so many different denominations?

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A VARIETY OF VICTOR KLOTZ CANCELS

The short answers to these questions are easy to set out. V.K. turns out to have been one Victor Klotz, and the reason why his initials appear on so many values of the battleship revenues is that he manufactured a line of perfumes and cosmetics which were sold in a variety of different sizes and at many different prices. The implications which follow from these answers are more complicated to spell out and the variety of directions in which they flow link together some unusual anecdotes from a variety of disparate sources.

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Although his initials appear on a great variety of U.S. revenue stamps, like the earlier-profiled Andreas Saxlehner, Victor Klotz was not even an American. However, unlike another earlier-profiled manufacturer, William Radam, his name was never, never used to promote his product.

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PINAUD TRADECARDS SHARING A COMMON BACK

Klotz’s perfumes, still available today, were, and always have been, marketed under the much more chic French name Ed. Pinaud. His cosmetics line – particularly Pinaud’s Clubman Talc Powder, still marketed, available and displayed in its familiar green container – can also be found on the shelf of almost any barbershop in this country, although these products no longer belong to the Pinaud perfume company itself. Klotz’s name, however, remains largely unknown and unrecognized outside the perfume industry itself.

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PORTRAITS OF EDOUARD PINAUD

(PICTURES WITH BLACK LABELS FROM ED. PINAUD WEBSITE)

The business which grew into Ed. Pinaud began in France during the Napoleonic Era, when, in 1810, one M. Besancon founded a perfume shop in Paris. He conveyed it to a M. LaGrand, who, in turn, sold it to a brash young man named Edouard Pinaud in 1830. At first, Pinaud called his new business “A la Corbeille Fleurie” (To the Flower Basket). According to the company’s own website, Pinaud displayed both a predilection and a genius for developing alluring scents early in his life. Born in 1810 in Abbeville, approximately one hundred miles northwest of Paris, he journeyed to Paris at age thirteen to apprentice in the perfume trade. His first triumph in his own business was an extract of violets which he called “Violet of Parma Bouquet.”

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By 1840, Pinaud had broadened the scope of the business and had so identified his name with the perfumes he manufactured that the company’s name has not been altered since. In 1841, he was recognized as a master perfumer in the commercial registry of Paris. Increased sales allowed him to expand his operations. He soon acquired warehouses in Brussels, which, in turn, allowed him to sell his perfumes in England. Pinaud was ambitious and a keen publicist. At a time when France was transforming itself from the stodgy rule of the bourgeois Bourbon kings to the grandiose Second Empire of Napoleon III, Pinaud assiduously courted the new Emperor and his Empress, Eugenie, eventually winning their endorsement.

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NAPOLEON III WITH EUGENIE AND VICTORIA

Not satisfied with the approbation of these nouveau royals, and sensing that patronage from older established royalty would awe the general public even more, when Queen Victoria of England traveled to Paris in 1855 to visit that year’s Universelle Exposition, Pinaud dedicated a new perfume to her. She was so impressed that she became a customer for the rest of her very long life and, in turn, he used her favor and endorsement to splash his name across the entire Victorian world. Pinaud continued to accrue acclaim and collect various prize medals at industrial expositions and fairs until, the company’s website insists, sheer exhaustion drove him to an early death in 1868. His memoirs, quoted by the company, included the following advice for those following after him: “… seek only in one direction, the one of Absolute Perfection.”

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As the business grew and expanded, Pinaud brought another perfumer into the business as his partner in 1852. His name was Emile Meyer. Born in 1817 in Ihringen, Baden-Wurttemburg, just east of the Rhine River in Germany (across from Alsace, the province long disputed between France and Germany), Meyer brought a different vibration to the elegant, royalty-tinged perfume business, for he was a Jew. The business was renamed Pinaud & Meyer, as both the manufacturing and retailing operations were expanded. As time passed, Pinaud came to rely more and more upon Meyer, and upon Pinaud’s death, Meyer was the natural choice to carry on the business.

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1859 PINAUD AD IN ENGLISH WEEKLY

Meyer was a sound and enterprising businessman who tripled the company’s business in five years. To attract and keep the best workers, he kept improving and expanding the company factory and instituted then-radical, new industrial practices like opening a canteen for employees and offering pensions to older workers. In an age before multi-shareholder, acronym-named (and, therefore, virtually faceless), international mega-corporations, custom dictated that a company’s product bear the name of the principal owner as a guarantee of its soundness and bona fides; an upright man endorsed his honest product with his name. When Pinaud bought the business, he had promptly placed his name on the perfumes he sold, and, in the normal course of time, Meyer should have continued this tradition by replacing Pinaud’s name with his own on the perfumes. By 1868, however, Pinaud had catapulted the perfumes – Ed. Pinaud perfumes – into the first rank.

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Aside from Pinaud’s renown, Meyer’s name may have suggested another reason for not changing the name on the perfume bottles. The simple fact was that Jews were outsiders in the France, England and even in the United States, where Meyer made the earliest attempts to introduce the Ed. Pinaud perfumes. In France, the 1890s were highlighted by the Dreyfus Affair, an virulently antisemitic outburst caused by the French Army’s General Staff’s knowingly and wrongly convicting its one Jewish officer of espionage to cover the indiscretions of one of its own aristocrats. English aristocracy did not accept Jews into its ranks and U.S. society, while less openly antisemitic than France or England, was led by Mrs. Astor’s Four Hundred in New York City, a group not known for its heterogeneity. Jews in the late 19th Century, whether in France, England or the United States, generally did not want to draw attention to their religion, and certainly would not have sought to draw a direct connection between Judaism and an item meant as a luxury like perfume.  Yet, having noted this clear distinction between religion and commerce, it must be emphasized that the Pinaud story is much more one of enterprise and commercial success than difference.

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PINAUD TRADE CARDS PORTRAYING FRENCH NEWSPAPERS

Throughout his tenure at the helm, Meyer continued his expansion of the Pinaud business, and extended Pinaud’s sales to the United States. However, his greatest display of acumen may have been in 1883 when he brought his son-in-law, Victor Klotz, into the business with him. Klotz, born in 1836 in Paris, had already established his reputation as a silk merchant before joining his father-in-law. When Meyer died in 1888, Klotz smoothly stepped in, just as Meyer had replaced Pinaud. He proved to be energetic and willing to travel to expand the business. In 1890, he organized Pinaud’s American and Canadian business into a separate branch headed by Emil Utard and located its New York City office at 46 East 14th Street in Union Square.

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NEW YORK CITY PINAUD OFFICES

Pinaud’s sales jumped sixfold in the U.S. during the 1890s. Interviewed in 1902 about Pinaud’s advertising policy, Utard explained that the main thrust of Pinaud’s advertising campaign was concentrated in half page ads taken in national magazines. Sometimes, Pinaud would even run two ads on the same page, but, when it did, the ads were aimed at different audience. For example, if the top ad were for a dainty lady’s perfume, the bottom ad would be for Pinaud’s barbershop hair tonic. Utard stressed that the ads were not an attempt to sell the goods directly to customers so much as to place the company’s name before consumers in order that they would ask their retailers for Ed. Pinaud products. Pinaud placed ads itself as well as through the burgeoning ad agency, J. Walter Thompson. Other types of advertising Pinaud employed were placards in trolley cars, advertising curtains in major theaters throughout the country and fans distributed to ladies at summer resorts and roof gardens, mediums more fashionable in those times than ours. Like Meyer, neither Klotz nor Utard ever suggested changing the name of the perfumes.

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1903 PERFUME AND 1910 HAIR TONIC 1/2 PAGE ADS

As an industry innovator, Klotz introduced a new perfume called Flirt which became an instant hit in 1891.

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1910 FLIRT AD

His purchase in 1896 of a Parisian mansion for a million francs from the American John William MacKay, one of the owners of the Comstock Lode and dubbed by Parisians “the king of money,” was the talk of the town. Curiously, Mackay himself had decided to move to Paris after he and his wife – neither Jewish but rather sporting Western nouveau riche money – were snubbed by New York society.

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FORMER KLOTZ HOME IN PARIS

In 1900, Klotz enriched the entire Pinaud family of products by introducing Brillantine, a hair softening product that also made hair shine. The name was derived from the French word “brilliant,” meaning “brilliant,” and in English brilliantine has grown to become the generic name for any product that glosses the hair. For the carriage trade, Klotz also debuted a new perfume for the Paris Exposition of 1900. He also lent his personal collection of perfume bottles to a perfume museum at the Exposition that became one of one of the central attractions of the Fair.

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KlotzV-4-1901-1a(EdPinaud)     KlotzV-4-1903-1

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PINAUD PARIS EXPOSITION PERFUME AND POSTCARDS

The Pinaud perfumes always indulged the Victorian obsession with orientalia in advertising and design, and after a particularly successful display at an Exhibition in Tokyo in 1904, Pinaud became an official supplier to oriental royalty as well, the Emperor of Japan. Klotz died in 1906, wealthy and respected among his peers.

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EXPOSITION AND FAIR MEDALS WON BY PINAUD PERFUMES

Control of Ed. Pinaud passed to Klotz’s sons, Henry and George, and their initials appear as part of the company cancel on the U.S. revenue stamps of 1914, but the perfume names were never changed.

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H. & G. KLOTZ 1914 REVENUE ISSUE AND COVER CIRCA 1915

The sons were not as dynamic in their leadership of Ed. Pinaud as their father had been, and the actions of the leading Klotz of that generation, Victor’s nephew, Louis-Lucien Klotz (1868-1930), a journalist and French politician, did not place the family in a good light.

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As finance minister in Georges Clemenceau’s debt-burdened World War I government of France, L-L Klotz pressed for harsh reparations to be paid by the Germans, and was memorably quoted proclaiming, “The Boche will pay.” Although later scholarship seems to indicate that L-L Klotz personally understood that a policy of harsh reparations would not work, he acted as Clemenceau’s advocate for them during the Versailles Peace Treaty negotiations, earning David Lloyd-George’s contempt while not winning Clemenceau’s respect. Sadly, Clemenceau later said of Klotz’s fiscal abilities: “My finance minister is the only Jew in Europe who knows nothing about money.” In his own later life, L-L Klotz lost all of his money as well as the family’s fortune, was convicted of passing bad checks and died while serving a two-year prison sentence. Part of the fortune L-L Klotz lost was the family residence in Paris. That building, located at 9 rue de Tilsitt, now serves as the Belgian Embassy to France.

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OLDER PINAUD PERFUMES SHOWING

1919 SERIES U.S. AND CANADIAN REVENUE STAMPS

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KlotzV-10-11a(EdPinaud)     KlotzV-10-11b(EdPinaud)

PINAUD COLOGNE SOLD IN INDIA

 L-L Klotz’s missteps coupled with the onset of the Depression imperiled the continued existence of the Ed. Pinaud Company. A new owner, Roger Goldet (1910-1997), also a French Jew, took control of the company in the 1930s and infused it with an inventive second wind. As an originator, he created several successful new fragrances, including Opera and Scarlett, inspired by Margaret Mitchell’s Gone With The Wind, which kept the Ed. Pinaud company name in the public consciousness and broadened the cosmetics offerings, including formulating the particularly successful 612 Mascara sold throughout the world.

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PINAUD IN THE ROGER GOLDET ERA

Goldet was able to step in to the leadership of Ed. Pinaud with such authority and confidence because his mother was a member of the Deutsch de la Meurthe family which had participated in the creation of a major French oil company, Petroleum Jupiter, later the French Shell Oil Co. Because he came from such wealth, all during his life, his name was whispered in elegant circles, and echoes of these whispers are found today in scattered footnotes on the Internet.

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CAMILE PISSARRO, “HOUSES AT BOUGIVAL (AUTUMN)”

For example, among these footnotes is a listing in the provenance of a Camile Pissarro painting, “Houses at Bougival (Autumn)”, now in the J. Paul Getty Museum of Los Angeles, CA, showing Goldet as its seller at a 1979 Sotherby’s auction after inheriting it from his mother who had purchased it in 1934 also at Sotherby’s. At other times, Goldet disposed of several other works by Pissarro originally acquired by his mother’s family, but a work by Jean Dubuffet, catalogued on another website is still listed as part of the Goldet collection located in Neuilly, France. Another such buried reference note contains a discussion of the bespoke Bentley with bodywork designed by the French firm of Figoni et Falaschi that Goldet ordered in 1936, one of three Bentleys that firm ever created. Sadly, that story does not end happily for collectors of such rarities. The car was involved in a serious accident and had to be re-conceived by a different bodywork design company in 1944.  Roger Goldet continued active leadership of the French Ed. Pinaud company until 1979 when he turned the management of the company over to his son, Olivier, born in 1943.

KlotzV-10-10b(EdPinaud)     KlotzV-10-9aREV(EdPinaud)

OLDER PINAUD COSMETIC PRODUCTS

A major change in the Ed. Pinaud company seems to have occurred during Roger’s tenure. The French and American operations were split into separate companies. The American company embarked on its own corporate history, which ultimately led to its disposition of its Pinaud Clubman line of barbershop and men’s cosmetic products, and is now listed as inactive. The ultimate purchaser of the Pinaud Clubman products was American International Industries of Los Angeles, CA, which specializes in beauty care products and whose CEO is an orthodox Jewish rabbi named Zvi Ryman.

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Ryman took a circuitous path to becoming a beauty industry executive. In interviews, he tells that he was in an import-export partnership buying merchandise in Hong Kong for resale through small corporations in the U.S. Its equilibrium was upended by President’s Nixon’s August, 1971 decision to stop guaranteeing redemption of U.S. dollars in gold, which, in turn, led Hong Kong merchants to stop accepting dollars as payment for goods and forced the partners to divide their assets. Neither partner wanted a small company that sold false eyelashes. They agreed to flip a coin, with the loser to take the account. Ryman lost, and, from that small beginning has built a large stock of beauty products by purchasing product lines such as Pinaud’s Clubman. Ryman, in turn, has licensed the online distribution of Pinaud’s products in the U.S. to Corrado Cutlery, run by James Bilger, and it is this website which serves as the official Clubman site in the U.S. The French Ed. Pinaud company’s website functions separate and apart from the Clubman website, is itself classified and indexed on at least one domain listing website and, has, in fact, generated at least one metadata website that has analyzed its traffic and, probably for a fee, would offer suggestions on how to improve its effectiveness.

     KlotzV-10a-2REV(EdPinaud)     KlotzV-10a-3REV(EdPinaud)     KlotzV-10a-4REV(EdPinaud)

CURRENT PINAUD CLUBMAN PRODUCTS

Ed. Pinaud may have decided to separate itself from its Clubman men’s brands because it discerned too much of a spread between the luxurious image it has always cultivated for its perfumes and associated goods, and the men’s products which traditionally were always retailed to public through barbershops.

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      CLIFFORD ODETS     WILLIAM FAULKNER

Culturally in the U.S., Pinaud’s Clubman line of men’s products became identified as an indicator of aspiration to the middle class and has been portrayed that way in American literature.  In the 1935 play Awake And Sing, Clifford Odets’ portrait of a lower middle class Jewish family in the Bronx struggling to survive the Depression, when one family member gives another a haircut, he offers him Pinaud at the end just as if they were at the neighborhood barbershop (in modern editions of the play – whose readers presumably do not visit neighborhood barbershops – Pinaud rates an explanatory footnote). Similarly, in William Faulkner’s Sanctuary, published in 1931, Popeye, a rapacious and murderous character, requests Pinaud to spruce himself up on his way to the gallows, perhaps a last-minute concession to both his petty vanity and the normalcy it represents.

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CURRENT PINAUD PERFUMES

Concerning the present status of the French Ed. Pinaud company, Olivier Goldet appears to continue to function as its principal executive, still resides in Paris and maintains active Facebook and Linked-In accounts online. One intriguing web link to his name shows that in 2006, he sat as a member of a panel at the University of Paris that awarded a PHD degree to a young woman whose doctoral thesis traced the history of the Jewish upper middle class in France in the context of Goldet’s Deutsch de la Meurthe ancestors.

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CURRENT PINAUD PERFUMES

The French Ed. Pinaud company has maintained its allure as a niche purveyor of elegant perfumes, cosmetics, and more recently, jewelry and watches, to today’s jet setters. It is no longer a heavyweight in either the global or even the French perfume market. There are vague, dark rumors on certain men’s grooming websites that it no longer produces the revenue that the Clubman line does. While the English writer Ian Fleming made “Pinaud Elixir” James Bond’s choice of shampoo, calling it the “prince of shampoos,” and Pinaud’s Clubman in the U.S. still traces its history all the way back to 1810, that product line basks in the reflected glory of its chic French cousin. For advertising and revenue purposes, that may be sufficient.

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PINAUD CLUBMAN TALC

AT THE AUTHOR’S LOCAL BARBERSHOP MARCH, 2015

© Malcolm A. Goldstein 2015

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