E

Eisner & Mendelson Co.

Eisner & Mendelson Co., Importer

Eisner&Mendelson-2-RB22

     Eisner&Mendelson-2-RB25a100     Eisner&Mendelson-2-RB25

Eisner&Mendelson-2-RB25a101

Eisner&Mendelson-2-RB28-1a     Eisner&Mendelson-2-RB28-1f

Eisner&Mendelson-2-RB28-1b     Eisner&Mendelson-2-RB28-1c

Eisner&Mendelson-2-RB28-1d

EISNER & MENDELSON CO. CANCELS

Eisner & Mendelson Company (E & M) imported foreign manufactured mineral waters and malt extract tonics into the United States. It began in 1882 as a partnership between Moritz Eisner and Joseph Mendelson, and its cancels, featuring its entire name in a circle, appear on four or five different values of the battleship revenues according to Mustacich and Giacomelli. Because both the entire name and its location appear in the cancel, E & M’s battleship revenues are among the easiest of the hand stamped cancels to attribute definitively.

Eisner-Portrait1RV2

As recounted recently, E & M was part of M. J. Breitenbach’s original partnership to market Pepto-Mangan in the U. S., but its history is best traced by studying the lawsuits in which it appears as a party. The pattern which emerges is that E & M was a litigant again and again because it was acting as U. S. agent for the chief competitor of a popular foreign product or elixir whose sponsor fiercely defended its own right to its name and label. Notably, this column has already recounted its epic battle with Andreas Saxlehner over the U. S. rights to market Hunyadi spring water, a case ultimately adjudicated by the Supreme Court. Predicated on the opinion rendered against E & M, a lower court in 1896 awarded Saxlehner damages of $31,030.36 after conducting an accounting of E & M’s infringing sales.

Eisner-6a-1894-1a     Eisner-6a-1894-1bRV

1894 AD – EISNER, BREITENBACH & CRITTENTON

ALL ON SAME PAGE OF A DRUGGIST’S TRADE JOURNAL

Moritz Eisner was born in Vienna in 1853 and emigrated to the U. S. in 1872. He studied chemistry at the University of Philadelphia, worked for the wholesale druggist Aschenbach & Miller (another battleship revenue user), and then for the small importing chemists, Cramer & Small before buying them out in 1880 with financial help from Aschenbach & Miller. He married a native Pennsylvanian, Anna Zeitz, at the end of December, 1874. While building his importing business, he also acted a local correspondent for German pharmaceutical journals, and when traveling in Europe, as a correspondent for the Philadelphia German language newspaper, the Demokrat, as well as the New York Tribune. Locally, he seems to have forged a sound reputation, for, in 1882, a Pennsylvania medical society journal praised him for importing from Germany the finest solutions of mydriatic alkaloids then used in experiments to study eye muscle reactions.

Eisner-MendPortrait1RV

JOSEPH MENDELSON

Joseph Mendelson was born in Hohenems, Austria in 1852 and emigrated with his family to Philadelphia in 1859. He worked in his father’s dry goods store, then briefly ran his own retail store before becoming salesman for a manufacturer of cabinet ware. He married a woman named Hattie August and again became a retailer in Philadelphia, this time briefly operating a shoe store. In 1882, Mendelson went into partnership with Eisner, with Mendelson handling finances and sales deliveries and Eisner dealing with what is now known as “product development” and advertising. As E & M’s business prospered, the firm relocated its headquarters to New York City in 1887 and incorporated as a West Virginia corporation in 1891. Beyond its entanglements with Andreas Saxlehner, E & M had bruising engagements with several other companies.

Hoff’s Malt Extract

E & M’s most notable dispute concerned its importation of Hoff’s Malt Extract. Malt extract is a liquid collected from grain (often barely) soaked under controlled conditions to allow it to partially sprout. It is often an ingredient in beer, which is grain that is further exposed to the fermentation process to produce alcohol. The terms malt extract and beer have always been loosely interchanged because of common confusion between malting and brewing, but Nineteenth Century producers of malt extract always insisted that the partial sprouting of the grain allowed malt extract to be classified as a food rather than a beverage. In many cultures, malt extract is believed to have medicinal properties to sooth digestion, and in the Nineteenth Century malt extract was marketed as medicine.

Eisner[Hoff]-6a-1868-1a

1868 HOFF’S MALT EXTRACT AD

BEFORE EXCLUSIVE AMERICAN

DISTRIBUTORSHIP CONTRACT NEGOTIATED

In 1880, Johann Hoff Co., a German manufacturer of malt extract, engaged Eisner as its American sales agent. Thereafter, Eisner became a long-term participant in the quest to establish who had the right to produce and import the genuine Hoff’s Malt Extract. The question spurred lawsuits on two continents for nearly thirty years. A U.S. court in 1896 concluded that the initial formulation of the Extract lay in “obscurity and doubt,” but that neither the product itself or its manufacturing process was covered by any patent, and that “anyone who knows the secret is free to make it.” The court then coolly observed: “[t]hat many members of the Hoff family did know the process … is fully sustained by the proof.” This shared knowledge caused much litigation.

The Hoff Malt Extract story originates in 1847 when Johann Hoff began making his Malt Extract in Berlin. His business quickly prospered and, over the next generation, both Hoff and his Extract became so well-known that they impressed themselves on European culture. In Dostoevsky’s Brothers Karamazov, Ivan Karamazov imagines himself having a conversation with the devil who, while trying to ingratiate himself with Ivan, tells Ivan a tale in which he attributes his recovery from earthly ill-health to a dose Hoff’s Malt Extract. A few years later, when commenting on Sarah Bernhardt’s visit to Moscow, Chekhov noted that Bernhardt craved publicity in the same manner as Johann Hoff had, and that such a craving had brought fame and fortune to both.

dostoevsky

DOSTOEVSKY

Chekhov

CHECKOV

As Hoff’s empire expanded, he required new sales offices and bottling plants across Europe. Hoff located his sales and production operation in Berlin and staffed the other locations with members of his family, among them his brother Marcus and his nephew Leopold, Marcus’s son. Marcus ran the bottling plant located in Hamburg, Germany. Leopold managed the sales branch in Paris, but in deference to one of Johann’s new sons-in-law, transferred to Vienna. Dissatisfied with prospects in Vienna, Leopold proposed to Johann that he move to New York City and develop sales in the powerful market then arising in the U.S. Johann approved, and Leopold opened a store in New York City in 1866. In 1868, Leopold returned to Europe after transferring his business to one Joseph Pedersen with the stipulation that Pedersen purchase his Hoff’s Malt Extract exclusively from Marcus in Hamburg. Pedersen then levered his arrangement with Leopold into an association with Tarrant & Co. (Tarrant), a wholesale drug firm in New York City. (For the vigilant, yes, the circle closes tighter; Tarrant was purchased years later by M. J. Breitenbach Co. after a disastrous fire in 1900, as noted a few columns back).

Eisner&Mendelson-5a-3aRV(HoffsMaltExt)     Eisner&Mendelson-5a-3bRV(HoffsMaltExt)

E & M HOFF’S MALT EXTRACT TRADE CARD

To be sure it was on firm ground marketing Hoff’s Malt Extract, Tarrant dispatched Pederson to Berlin to arrange an exclusive distribution contract with Johann himself. Johann apparently deputized Leopold to make the arrangements, and in July, 1869, Leopold signed a twenty year exclusive U. S. distributorship compact with Tarrant The contract provided that orders and correspondence would go through Leopold in Hamburg, but payments would be made to Johann in Berlin. This system worked satisfactorily until 1873 when Johann encountered financial trouble which caused him to transfer his own operations in Berlin to a corporation subsequently run by his wife and also to re-locate himself for a year and one-half to St. Petersburg in Russia, presumably to avoid his creditors. Responding to Johann’s financial crisis, Leopold instructed Tarrant to make payments directly to him in Hamburg and to keep buying from the bottling plant in Hamburg, now listed solely in Marcus’s name.

Eisner&Mendelson-5a-1a(JohannHoffsMaltExtract)(SeeAlsoTarrant)     Eisner&Mendelson-5a-1b(HoffsMaltExtract)

  E & M HOFF’S MALT EXTRACT TRADE CARD

After Johann regained his financial bearings again in 1878, he tried to reassert full authority again over his Malt Extract holdings. Leopold resisted and relations between Johann and Leopold cooled. Johann demanded that Leopold stop using the Hoff Malt Extract label and trademark and claimed the American distributorship contract with Tarrant both had expired and was void. Leopold and Tarrant insisted that the contract was still valid and continued business as usual.

Eisner-6a-1886-1a

1886 E & M HOFF’S MALT EXTRACT AD

Eisner[Tarrant]-1890-1a

1890 TARRANT HOFF’S MALT EXTRACT AD

In 1881, reviewing a display of pharmaceutical preparations in London, a British medical journal noted that there were two displays of Hoff’s Malt Extract, one by Leopold and the other by Johann. In addition to liquid malt extract, Leopold also displayed a more jellied form together with malted chocolate and candy fashioned from malt extract. Johann showed his tried and true liquid malt extract. The magazine found both malt extract presentations novel, commended them both to public experimentation and noted: “It is to be regretted that any unfriendly rivalry should exist between those who aim at relieving the sufferings of the afflicted.”

Eisner-6a-1887-1a(Brit)

1887 (JOHANN) HOFF’S MALT EXTRACT ENGLISH AD

Johann then stepped up the war in the U.S. not only by engaging Moritz Eisner to act as his agent, but also by suing Tarrant in the federal court in New York City in 1881 for unfair competition as well as trademark infringement. The court noted that the sole witnesses who testified were Johann for the plaintiff and Leopold for the defendant. In its opinion, finally rendered in 1886, the court concluded “[n]either of them is truthful.” It found that both Johann and Leopold had sufficient knowledge to make the Malt Extract, and that, whatever they said, they had not really acted at cross-purposes until 1878 when Johann tried to reassert his control of the Hoff’s Malt Extract family fortune. Because the court found that Johann knew and understood what Leopold was doing at all times between 1869 and 1878, it dismissed Johann’s complaint against Leopold. Legal round one went to Tarrant.

Eisner&Mendelson-10-0aRV(JohannHoffsMaltExtract)

E & M HOFF’S MALT EXTRACT BOTTLE

In the first extant litigation mentioning Eisner, in 1882, he brought a criminal slander action against Tarrant’s traveling salesman, one Hurlbert, in the Philadelphia courts alleging that Hurlbert visited Eisner’s customers and told them that Eisner’s Hoff’s Malt Extract was fake. The court dismissed the suit, remarking that Eisner had not pleaded slanderous statements made against himself, but rather only demonstrated disparagement of his product, and also had failed to allege specific damages flowing from those statements. Legal round two also went to Tarrant.

In the continuing German litigation, Leopold seems to have preserved his right to manufacture Hoff’s Malt Extract separately from Johann, but, after the Supreme Court of the German Empire remanded the matter for re-trial in 1887, E & M crowed in its U.S. advertising that it had vindicated its claim to be the source of the only “genuine” Hoff’s Malt Extract. The ad supposedly quoted language from a German Court decision forcing Leopold to make the label and trademark changes that Johann had asked for as part of the relief he sought in the U.S. lawsuit in 1881. However, sensing that E & M had quoted in its ads language not drawn from an actual German court decision but rather from its own brief outlining its argument submitted to the German court, Leopold, in turn, struck back in Germany.

Eisner-6a-1887-2a

1887 E & M AD CLAIMING VICTORY

In 1889, Tarrant triumphantly trumpeted that it could now denounce E & M’s ads as complete lies. Circulating its own flyer, widely reproduced in U.S. industry journals, Tarrant published “extracts” from an actual 1889 German court decision – forwarded and attested to by the American counsel in Hamburg – in which that court overruled Johann Hoff’s defense in that court that E & M’s merely had made a mistake when it quoted its own brief rather than a court decision in its 1887 ads. It ruled, instead, that defense to be a deliberate lie rather than a mistranslation. The German court further ruled that E & M’s claim that its extract was manufactured in Germany was also a deliberate lie, finding that E & M’s extract was being manufactured in Philadelphia. Having exposed E & M’s lies, echoing Hurlbert’s earlier sales pitch, Tarrant’s announcement then reminded its customers that any physician who troubled to taste the two Hoff’s Malt Extracts would instantly know the difference: “[E & M’s Extract is] light, sour and nauseous liquid, bearing evidence in odor, taste and appearance of a doctored beer having the effect of a stimulant, while the genuine Hoff’s Malt … Tarrant’s is a nutrient.” [all italics in original].

Eisner[Tarrant]-1889-1a

1889 TARRANT REBUTTAL

PRINTED AS NEWS STORY

IN AMERICAL MEDICAL JOURNALS

Yet even as E & M and Tarrant continued to exchange these very loud and very public trade broadsides, important machinations occurred behind the scene. In 1889, Leopold and Tarrant negotiated a new contract to replace the 1869 agreement which, by its terms, was expiring. That contract renewal removed Johann’s name completely from the label Tarrant used in the U.S. and substituted the word’s “Hoff’s Malt Extract – Tarrant’s” in its place. The place of manufacture was changed from either Berlin or Hamburg to Hamburg only, and the fine print of the label was modified in other small ways to show that this Hoff’s Malt Extract was Leopold’s and came from Hamburg. While Tarrant’s modifications were voluntary, and its 1889 circular denounced E & M’s advertising as lies, that circular slyly and subtly ended with the announcement of its future modifications of its U.S. label.

     Eisner-6a-1886-2a

 1886 E & M HOFF’S MALT EXTRACT AD

In 1891, Eisner clashed with another adversary over Hoff’s Malt Extract. Applying a new special provision of the Tariff Act of 1890, the Treasury Department classified Eisner’s latest import of Hoff’s Malt Extract as a “malt extract” taxable at a 40% rate rather than at the 25% rate for medicinal preparations not containing alcohol. Prior to 1875, the federal government simply treated malt extract as beer for purposes of import duty. In 1876, Johann Hoff convinced the Treasury Department to issue an administrative ruling classifying his Malt Extract as a medicinal preparation taxable at the 25% rate. Others, drawing on the distinction between malting and brewing, also got competing malt extracts classified as medicinal preparations, and one importer even received a classification of his extract as a food product because of the germination of the grain in the malting process. After the passage of the new tariff law, the Treasury Department read the Act literally and simply applied the new specific provision imposing the 40% tax on malt extract as opposed to the 25% tax on medicinal preparations that also had been renewed. After an administrative appeal within the department produced the same result, Johann Hoff Co. sued in New York federal district court to have the ruling of the Treasury Department set aside on the basis of the older Treasury rulings and the more general tax imposed on medicinal preparations. Amazingly, the District Court agreed and overruled the Treasury Department, but, in 1894, the Circuit Court, upon the government’s appeal, reversed and reinstated the 40% import duty. The Court reasoned that Hoff’s Malt Extract contained 12% malt extract by volume (some of which, the Court noted, was alcohol naturally created in the malting process, a minor differentiation itself carrying the product outside the medicinal preparation classification) and, more importantly, was advertised to stress the special properties of malt extract. Because Congress had specifically address malt extracts, the Court ruled the new specific provision governed, even if Hoff’s Malt Extract was normally considered a medicine.

Eisner[Tarrant]-1895-1a

     1895 TARRANT HOFF’S MALT EXTRACT AD

Because E & M and Tarrant apparently still were accruing significant enough sales, they continued battling each other. After mirroring E & M by also incorporating a U.S. subsidiary as a West Virginia corporation, in 1891, Johann Hoff Co. openly began to produce its Hoff’s Malt Extract in the U.S. Now embracing its identity as a U.S. corporation, it again sued Tarrant in the U.S. District Court of New York both to assert its exclusive right to market its Hoff’s Malt Extract as the only genuine Hoff’s Malt Extract and claiming unfair competition. On the eve of trial of this new complaint, it was revealed that in 1882, Johann, Marcus and Leopold had signed a contract among themselves in Germany which divided the world between Johann’s original firm and Marcus’s Hamburg firm for purposes of production and sale of Hoff’s Malt Extract. Johann received the U.S. and the Americas, with the proviso that Leopold could continue his American business with Tarrant & Co, whether a part of Marcus’s operation or not, so long as he did not use Johann’s “malt essence.” Marcus died in 1885 and Johann died in 1887. Apparently, since the 1882 arrangement tolerated the status quo in the U.S., the Germans did not bother to disclose its terms to their U.S. distributors. Even in the face of that revelation, Johann’s heirs still claimed misconduct by Tarrant, apparently asserting that Leopold had not abided by the terms of the 1882 agreement and was still using Johann’s “malt essence.”

Eisner-6a-U(Harpers)-1bRV     Eisner-6a-U(McClures)-1bRV

E & M HOFF’S MALT EXTRACT ADS

In its 1896 decision, rather than trying to sort out what constituted the true “malt essence” and who possessed it, the District Court took the 1882 agreement as indisputable evidence that both firms had the legal right to market Hoff’s Malt Extract in the U.S. Its decision simply required Tarrant to add “Leopold” to its label in front of the words “Hoff’s Malt Extract” and, likewise, barred sale without this modification. When the Court of Appeals affirmed the District Court, in a very short per curiam decision, it simply pointed out that Leopold’s earlier label changes had not been dramatic enough to avoid “deceitful confusion,” although it refused to require a “perfidious” motive to find such “deceitful confusion” and remarked that such confusion might even arise from carelessness! Each side immediately proclaimed victory. E & M insisted that having “Leopold” added to Tarrant’s label was victory enough, although it conceded that it had neither barred Tarrant from selling Hoff’s Malt Extract nor had it gained an accounting of damages for Tarrant’s past sales. For its part, Tarrant claimed the further label modification was a minor inconvenience, crowed again that it had shown that Johann’s Malt Extract was a pale American shadow of its German product, and vainly promised to appeal this decision again to the U.S. Supreme Court.

Eisner&Mendelson-5a-2a(HoffsMaltExtract)     Eisner&Mendelson-5a-2b(HoffsMaltExtract)

E & M HOFF’S MALT EXTRACT TRADE CARD CIRCA 1898

Meanwhile, in 1894, the U.S. had re-codified its trademark law, and the fight thereafter shifted to the trademark forum. In 1905, Johann Hoff Co. tried to register Hoff as a trademark for malt extract, claiming that it had obtained exclusive use of the term “Hoff’s Malt Extract” for the ten-year period before its registration filing, relying principally on its 1896 court victory. The Patent Office declined to make the registration, and Johann Hoff Co. appealed the Office’s decision to the federal court of appeals in Washington. In 1909, that court held that the Patent Office correctly concluded that Johann Hoff Co. had not demonstrated its exclusive use of Hoff’s Malt Extract, and reasoned that Hoff’s Malt Extract and Leopold Hoff’s Malt Extract were so close as to deny either exclusive use of “Hoff” as a trademark. So ended the “Thirty Years’ War” over the proprietary nature of Hoff’s Malt Extract. Eisner may have acted on behalf of Johann Hoff, who was the original Hoff of Hoff’s Malt Extract, but he was close enough to Johann to have known that Johann had granted Leopold a free hand to distribute the product in the United States.

Eisner-6-1909-1a

E & M TRADEMARK REGISTRATION POST HOFF RULING

Although as late as 1906, Eisner managed to place a medical study commending the use of Hoff’s Malt Extract as a treatment for anemia in a medical journal, in the same manner as Breitenbach had used such medical journals, by 1912, the market for Hoff’s Malt Extract must have been failing, for Johann Hoff Co. found it could not meet the payment deadlines for its bonds then falling due. It dissolved itself as a West Virginia corporation and re-chartered itself as a Maine corporation that purchased the assets of the old corporation through issuing bonds not payable until 1921. The only part of the operation that remained the same was that the new corporation assigned its entire production output to E & M, which, as a contemporary New York Times article noted, “will guarantee net profit to the new company sufficient to meet all the fixed charges.” By then Hoff’s Malt Extract had wormed its way into American culture as well. In 1904, the American author Willa Cather wrote in a letter that she did not find it a cure for her general ennui and malaise.

CatherWilla

WILLA CATHER

E & M’s Other Involvements

Carlsbad Sprudel Salts

By 1887, Eisner had landed other major contracts, becoming the U.S. representative for various mineral waters bottled by the famous hot spring cities of Vichy in France and Carlsbad, then in Austria., as well the Hungarian water that brought on the litigation with Andreas Saxlehner.

Eisner&Mendelson-6-2RV(VichyWater)

E & M VICHY WATER AD

Eisner’s involvement with the City of Carlsbad, distributing and marketing its mineral water, “Carlsbad Sprudel Salts,” led to his participation in another slew of litigation over whether the City could hold exclusive rights to profit from its name and its springs. In these cases, the problem presented was that the mineral content of Carlsbad’s water had been analyzed and the formula for its production published in Germany. Any American manufacturer could produce a mineral water that had the same mineral content as Carlsbad Sprudel Salts, but could that manufacturer invoke Carlsbad’s name in connection with its sale?

Eisner&Mendelson-6-9RV(CarlsbadSprudelSalt)     Eisner&Mendelson-6-6RV(CarlsbadSprudelSalt)(1895)     Eisner&Mendelson-6-7RV(CarlsbadSprudelSalt)(c1900)

E & M CARLSBAD SPRUDEL SALT ADS

At first, Eisner seemed to prevail, winning an injunction against the sale of Saratoga “Carlsbad” Water by Philadelphia druggist G. W. Nock in 1888. In connection with another American lawsuit he brought in 1889, Eisner accompanied the lawyers to Carlsbad for the deposition of its Mayor, who attested that the City had controlled and exploited its mineral springs since 1370 and displayed the patents granted by the Habsburg emperors to prove its exclusive control. Upon his return from Carlsbad, Eisner confidently reported to the press that the Mayor’s evidence would conclusively determine the litigation.

Eisner&Mendelson-6-5RV(CarlsbadSprudelSalt)(1891)     Eisner&Mendelson-6-4RV(CarlsbadSprudelSalt)(1890)

ADDITIONAL E & M CARLSBAD SPRUDEL SALT ADS

However, when the case was adjudicated, the court found that one Schultz, the American distributor whom Eisner was trying to shut down, had actually used the term “Carlsbad Water” long before Eisner began importing the genuine article into the U.S. and had always identified his water as artificially created in accordance with the publicly known analysis of the mineral content of Carlsbad’s water. While the court was perfectly willing to enjoin Schultz from using any labeling that could be confused with Eisner’s, it proved an empty victory since the court held that Schultz had clearly denoted his water as artificial “Carlsbad Water,” found Schultz’s application of the term artificial sufficient to differentiate Schultz’s mineral water from the real mineral water, and therefore granted no accounting of damages for infringing sales. Applying the reasoning of this decision, the makers of Saratoga “Carlsbad” Water soon began marketing their water again, stressing in their advertising that its place of origin was Saratoga Springs, N.Y., not Carlsbad, Austria. Eisner’s and Carlsbad’s attempt to register “Sprudel” as a trademark similarly failed. In 1912, the trademark examiner held that another manufacturer had already registered his mineral water as “Gerolsteiner Sprudel” before Eisner filed his trademark application. The examiner further held not only that Carlsbad’s claim to priority of use of the term “Sprudel” in the United States was belied by the other party’s earlier registration, but also, that Eisner and Carlsbad could claim no exclusivity to the use of the term “Sprudel.” Even while conceding the term “Sprudel” might have first been coined to describe the springs at Carlsbad, the examiner found that by 1780 “Sprudel” had acquired in German the general descriptive meaning of “bubbling or boiling” or, when used as a verb “to break forth like a spring.” Since the term had become too general to pinpoint the origin of the water, the examiner denied Eisner and Carlsbad the right to register their trademark. As with Hoff’s Malt Extract, Eisner became the agent for the City of Carlsbad, the original source of Carlsbad Sprudel Salts, but took on the role too late to secure the exclusive U.S. rights to the product.

Eisner[Saratoga]-6a-1892-1a

1892 SARATOGA CARLSBAD WATER AD

Mendelson died at Far Rockaway, Long Island, in 1904 at age 51. Announced in a single drug trade journal, the factual statement of his death constitutes one half of his obituary. The remaining line reads: “Mr. Mendelson has been a member of Eisner & Mendelson Co. for twenty years, and by his kindness and courtesy of manner, had won not only the highest respect, but the warmest affection of all his associates.” However, most contemporary assessments of both Eisner and Mendelson were less charitable, and Hattie Mendelson’s name continued to appear in connection with E & M, but only because as her husband’s executor she was Eisner’s co-defendant in the Saxlehner litigation and many others.

Soden Mineral Pastilles

In 1891, E & M found itself enjoined with respect to selling another of its products. It was acting as the American sales agent for the Soden Mineral Springs Co., a German company that evaporated water from the Soden Spring in Germany to produce mineral wafers, called Soden Mineral Pastilles, which it asserted cured colds and bronchial ailments. The ads E & M ran in the U.S. for the Pastilles claimed that they were endorsed and recommended by the eminent English throat specialist, Sir Morrell Mackenzie, and even went so far as state that no package was genuine without Mackenzie’s signature on it. When informed that he was touting Soden Mineral Pastilles in the New York Times, Mackenzie took umbrage and sued in New York, affirming that he had no knowledge of the product, further that the signature reproduced on the package was not his, and that he had never sent E & M any endorsement of the product. In court statements, dodging the question of their dubious advertising claims, Eisner and Mendelson both responded that the packaging was done by the German company in Germany and shipped to them ready for sale, and, moreover, that their contract did not permit them to make any changes to that packaging. The Court had no difficulty enjoining E & M from engaging in false advertising using Mackenzie’s likeness, signature or words.

Cosmopolitan Advertising Bureau

In reporting the circumstances of another judgment entered against E & M in 1899, a journal interviewed the plaintiff who had obtained the judgment. One J. Preston Carson recounted how he had bought for $6000 a minority share in an advertising agency that E & M had organized to handle the advertising for its products as well as agreeing to become its president. E & M then decided to use the agency to handle outside advertising beyond E & M’s own and urged Carson to hire one Haulenbeck, “J. Walter Thompson’s right hand man,” to help him grow the business. Carson negotiated with Haulenbeck, but while these talks dragged on for several months, a deal was never consummated. Carson then claimed that Eisner had told him that because he had not come to terms with Haulenbeck, Eisner was going to close the agency completely. Eisner and Mendelson then offered to ease his loss by buying him out of his stake in the agency for $3150. Thereafter, Carson learned that Eisner and Mendelson had not closed the agency, but had made their own deal with Haulenbeck, bringing Haulenbeck into their operation on the same terms that Carson had negotiated with Haulenbeck minus Carson’s involvement. He then sued Eisner and Mendelson each for deceit, asserting that they had planned all along with Haulenbeck to force Carson out of the advertising bureau. After weighing the testimony, the jury found for Carson and the court entered judgment against E & M in the amount of $3638.14 to make Carson whole for his lost investment.

Carson described Eisner to the trade journal as Dr. Jekyll and Mr. Hyde. He was the soul of benevolence when he offered to buy Carson out, but laughed at Carson when Carson asked for the return of his stock after Eisner’s deal with Haulenbeck became known: “Eisner had run out of charity, Christian or otherwise.” When the lawsuit was tried, Carson claimed Eisner admitted he had not even read the affidavit his lawyer had him sign. Describing Mendelson, Carson said: “The man does not seem to be troubled by any more scruple of conscience than his esteemed partner, but he has none of his partner’s skill of fence. He was a mere plaything in the hands of the lawyers.”

Although Carson’s indictment of Eisner and Mendelson remains a part of the permanent story of E & M, Carson’s triumph was short-lived. When E & M appealed, the reviewing court reversed Carson’s judgment. Reading the same testimony as the jury, it found that Haulenbeck had legitimately declined to deal with Carson, and that E & M had negotiated with Haulenbeck at arm’s length through a different intermediary after Carson sold his stock back to Eisner. Therefore, it held the charge of deceit unfounded.

Dr. Friedrich Franz Friedmann

EisnerTurtleSerum(1913-04-29NYT)-1a

N.  Y. TIMES TURTLE SERUM TRANSFER REPORT

4/29/1913

Eisner’s final appearance on the public stage was as the U.S. distributor of Dr. Friedrich Franz Friedmann’s turtle vaccine heralded in 1913 as the cure for tuberculosis. E & M organized the Standard Distributing Co. especially to deal with this new miracle drug. Once again, there was a flurry of heart-stopping litigation breathlessly reported by the New York Times as to whether Eisner or a doctor named Sturm had properly secured the U.S. distribution rights. Eisner prevailed when Friedmann claimed that his association with Sturm was limited to Sturm’s observing him, and denied that he had conveyed the rights to the serum itself to Sturm. Shortly thereafter, the Times reported that Friedmann had transferred the formula to Eisner’s company. The Times also reported Friedmann’s and Eisner’s lofty plan to have the Standard Distributing Co. establish clinics all over the country to make the vaccine available to the public and free to the poor. After being announced with such a flourish in 1913, the turtle vaccine retreated into its shell, and in 1916, Eisner quietly testified in bankruptcy court that the New York Friedmann Institute was defunct. There are several Standard Distributing Co. presently in operation, but none seem to have any connection with Eisner’s company.

Moritz Eisner lived until 1938 when he died at age 84 after an illness lasting six weeks. His obituary in the New York Times noted that he had finally retired in the early 1930s from his final position as President of the Carlsbad Salts Co. Having never really prevailed on behalf of the European suppliers he represented to corner the markets they coveted within the U.S., nevertheless, Eisner managed to ride the popularity of their extracts and waters to a prosperous and comfortable old age.

 

© Malcolm A. Goldstein 2014

Advertisements
Standard
E

Eimer & Amend

**************

Eimer & Amend handstamp cancel on a 1/4 cent proprietary stamp
The partnership of Eimer and Amend grew out of the friendship between two Germans from Darmstadt, Germany who emigrated to the United States. Bernhard Amend was born in 1821 and studied chemistry. While serving as an assistant to the famous German professor, Baron Leibig, Amend met the American chemist Eben Norton Horsford who suggested that Amend work for him in the United States. Leibig and Horsford, leading personalities in 19th Century science, whose stories intersect this series from time to time, are likely to appear again in other columns, but for now, it is enough that Horsford propelled Amend to journey to the United States. Amend came in 1847, but the position with Horsford did not materialize, so he found employment as a chemist in the pharmacy of William Milner at the corner of 18th Street and 3rd Avenue in New York. When Milner retired in 1851, Amend purchased the business from him.

Carl Eimer was born in 1823, met Amend while he was at college and became a naturalized American citizen in 1860. Within a few years, he had renewed his acquaintanceship with Amend and joined his business. They quickly established themselves as the leading U. S. importer of European chemical and drugs. In 1873, Eimer’s nephew August joined the business and soon cemented his position in the firm by marrying Amend’s daughter, Mary. The enterprise kept expanding, and in 1874, Eimer and Amend also began to import laboratory equipment as well as adding their own glassblowing works. Carl Eimer retired in 1882 and died in 1888. Amend built a building for the burgeoning business in 1886 at the same location in New York City where the pharmacy had stood and in 1897 the partnership incorporated. Among Eimer & Amend’s notable customers were Thomas Edison, Henry Ford and E. R. Squibb. Amend, who retired in favor of his sons about 1900, lived on until 1911. He served as a Vice-President of the German Exchange Bank, was among the founders of the American Chemical Society, and was also a member of various social and charitable organizations including the American Museum of Natural History.

In the second generation, August Eimer emerged as a notable chemist and inventor. He remained with the company and eventually became its president from 1915 to 1926. August also was involved with the organization of the Willson Aluminum Works, which developed a ferro-chrome compound that was utilized in producing new, lighter and stronger armor plating for Teddy Roosevelt’s Great White Fleet. August Eimer also held the patent for a “Bandit Proof Bag.” When jarred, this bag released a chemical spray that blanketed the attacker and turned to smoke upon contact with air, making the bandit conspicuously easy to follow since he was, literally, smoking.

By 1917, Eimer & Amend had branch offices in Pittsburgh and Ottawa. It continued in business as a separate entity until it was purchased in 1940 by the Fisher Scientific Company. Fisher, whose products were used in the Manhattan Project, in turn, became a division of Allied Corporation between 1981 and 1991 before re-emerging as a separate company in 1998. Today Fisher Scientific operates independently, and mentions Eimer & Amend on its website as its “predecessor.”

© Malcolm A. Goldstein
Standard