of skimming, it was held that the label did not give proper and sufficient notice of the alteration in the milk.3 § 552. Seller Calling Attention to Notice on Label-Otherwise Notified. The question here arises whether it is the duty of the vendor to call the attention of the purchaser to the notice on the label. In one instance the tin can of cocoa in question, with the label upon it, was wrapped in a sheet of opaque white paper before delivery to the purchaser, who had no opportunity of seeing the label, nor was his attention called to it. The cocoa was sold at 8 pence per pound, the price of the best pure cocoa being 2 shillings 8 pence per pound. It was held that a sufficient notice had been given, one of the judges saying: "There was a label which distinctly stated that the article was mixed. It has been seriously contended that it was no label, because it was wrapped up in opaque paper at the time of being sold. The paper covering was merely the usual way of giving the article to a purchaser. The article has been so mixed for thirty years, and must have been well known to purchasers. To say that there was no label because of its being wrapped up is an absurdity." This decision was rendered upon a statute which provided that no one should be guilty of any offense in respect to the sale of any article of food "mixed with any matter or ingredient not injurious to health, and not intended fraudulently to increase its bulk, weight or measure, or conceal its inferior quality if at the time of delivering such article he shall supply to the person receiving the same a notice, by a label distinctly and legibly written or printed on or with the article, to the effect that the same is mixed. ''2 But in a subsequent case this case was distinguished. In that case the owner of it sold butter blended with milk in such a way as to cause the butter to contain an excess of water to the extent of 7.8 percent. They sold it in a wrapper on which was a label in the following 3 Petchey v. Taylor, 62 J. P. 360, 78 L. T. 501, 19 Cox C. C. 38. 1 Jones v. Jones, 58 J. P. 653. 2 38 and 39 Vict., ch. 63, § 8. terms: "Pearks' Butter. This is choicest butter, blended with pure English full cream milk, by new and improved machinery, whereby it retains about 20 to 24 percent of moisture and acquires that delicacy of flavour which has made Pearks' butter so famous. This package weighs half a pound including wrapper." The printed wrapper was in turn enclosed in a second wrapper which effectually concealed the printed matter. It was held that the owner so selling the article was not entitled to rely upon the provisions of the statute quoted above, owing to the presence of the opaque wrapper. "In my opinion,” said one of the judges, "the delivery of the article with a notice printed on an inner label, covered with an opaque wrapper, would not be sufficient. Jones v. Jones is not a sufficient authority on the facts of the present case. There the article sold was a tin of cocoa, and it was assumed to be a matter of common knowledge that tins had labels on them, and therefore the fact that they were wrapped up when delivered to the purchaser could not prevent the label having the effect of a notice to the purchaser. The question of the sufficiency of the notice is one to be decided on the particular facts of each case; but I doubt whether a purchaser of a pound of butter, on being handed such a packet, could be taken to have notice that there was another label inside the outside wrapper. If, therefore, the inner label was the only defense relied upon by the appellants (the owners), I should not be prepared to say that their contention was right.''s But the delivery of the label in accordance with the section quoted is not the only means available for giving the purchaser notice of what he is purchasing. Speaking of this statute Chief Justice Cockburn said in one case that it provided "a mode by which the seller may insure himself against the possibility of the enactment operating to his prejudice. If he delivers the label as provided by that section (statute), he protects himself against the possibility of being charged with an offense under the Act. If he does not, then I think it is incumbent on him to prove that, by several other means, 3 Pearks, Gunston & Tee V. Houghton [1902], 1 K. B. 889, 66 J. P. 422, 71 L. J. K. B. 385, 86 L. the purchaser had notice of what he was purchasing. I do not think the statute means that the affixing of the label is to be the only mode of bringing knowledge home to the purchaser. I think if a man puts up in a conspicuous position a notice, in large letters, as was done here, and it is clear that it must have come under the observation of the customer, that the statute [creating an offense for selling an article to the prejudice of the purchaser] would not apply." In another case the vendor called the purchaser's attention to a printed notice which was hanging up in the room: "All spirits sold in this establishment are of the same quality as heretofore, but to meet the requirement of the Food and Drugs Adulteration Act they are now sold as diluted spirits; no alcoholic strength guaranteed." It was held that there was no sale to the prejudice of the purchaser. In another case the facts were exactly the same, but the notice was: "All spirits sold in this establishment are of the same quality and strength as heretofore, but, in order to comply with the Food and Drugs Act, will not be of any quaranteed strength." This notice was held not to be sufficient because it did not bring to the purchaser notice of the fact that the spirits were diluted. In other respects it seems to have been sufficient." In another instance two servants of an inspector went into a public house and entered a public room called the club room, passing by the bar and kitchen on their way. They then called for half a pint of whisky, and were served with it in the club room. Upon analysis the whisky proved to be 37% degrees under proof, and the usual statutory proceedings were instituted against the vendor. There was evidence that at the time of the sale there was a notice posted in the bar and the kitchen to this effect: "All spirits sold at this estab 4 Sandys v. Small, 3 Q. B. Div. 449, 42 J. P. 550, 47 L. J. M. C. 115, 39 L. T. 118, 26 W. R. 814. 5 The statute under which the vendor was prosecuted. Gage v. Elsey, 10 Q. B. Div. 518, 47 J. P. 391, 52 L. J. M. C. 44, 48 L. T. 226, 31 W. R. 501. Exactly a similar notice was involved in Palmer v. Tyler, 61 J. P. 389, with a like result. 7 Dawes v. Wilkinson [1907], 1 K. B. 278, 71 J. P. 23, 76 L. J. K. B. 182, 96 L. T. 26, 23 T. L. R. 34, 21 Cox C. C. 340, 5 L. G. R. 1. lishment are diluted with water according to price," but there was no such notice in the club room. It was further proven that the bar and kitchen were visible to any one approaching the club room from the entrance, and there was but one entrance to the house; that neither of the two men saw or knew of any notice posted in any part of the house, and that nothing was said at the time of the sale concerning the quality of the whisky. There was nothing to show that the two men did not in fact know that the spirits sold at this house were diluted. The justices before whom the vendor was prosecuted refused to convict the vendor, but stated a case for the High Court, which held that these justices, before they came to their decision, ought to have inquired whether the purchasers knew that the practice at the vendor's house was to sell only diluted spirits, in which case no conviction was proper. "The purchaser's complaint," said one of the judges, "is that they did not see the notice; but then there was no finding in the case whether they did not know well enough of the diluting of all spirits before sold at the respondent's (vendor's) house. If the justices find that the men did not know that spirits were diluted, then there should have been a conviction. But if they did know, then there should be no conviction."'8 Perhaps, however, these cases are not at one with other cases upon the same statute. There it was said that the case might be "to the prejudice of the purchaser," although the purchaser had special knowledge, not derived from information given by the seller, that the article sold was not of the nature, substance and quality demanded by him, and that the test is, whether the sale would have been to the prejudice of a purchaser who had not that special knowledge. "The question, in my opinion," said Lord Alverstone, "is not what is the actual knowledge of the particular purchaser, except insofar as that knowledge is derived from information given by the seller either by notice, by the nature of the article itself, or by what passed at the time of the purchase; the question is, What would be the position, not of a skilled pur 8 Morris v. Johnson, 54 J. P. 612. PURE FOOD-44. See also apparently a similar case, chaser like an inspector, but of an ordinary person purchasing the article without special knowledge?" Judge Darling added: "There is a sale to the prejudice of the purchaser if a purchaser in the abstract would be prejudiced, although the actual purchaser may, for some reason peculiar to himself, not be prejudiced." In another case there was a notice in a conspicuous position in the shop, to the following effect: "Notice. Pearks' butter, sold at this establishment, is choicest butter blended with English cream and milk by new and improved machinery, whereby it retains about 20 to 24 percent of moisture and acquires that delicacy of flavour which has made Pearks' butter so famous." An inspector asked for half a pound of shilling butter, and did not, in fact, see the notice. The butter supplied him was blended with milk in such a way as to contain 7.8 percent of water above the permissible maximum of 16 percent. The court held that, assuming that only one kind of butter was sold in the shop, the seller was protected by the notice, and the sale was not to the prejudice of the purchaser.10 Where an inspector asked for "best fresh butter," and did not actually see the notice. placed up in the shop, though he admitted he could have done so if he had liked, the court expressed the opinion that, under the circumstances, the sale would be to the prejudice of the purchaser, unless it could be proved that he actually saw the notice.11 A., a publican, was charged with selling rum which was not of the nature of the article, being adulterated with 19 percent of added water. On the purchaser asking for rum A. said he had two qualities, one at 1 shilling and another at 1 shilling 2 pence per half pint, and the quality at 1 shilling was supplied. The analysis showed that the rum was 38 degrees under proof, and contained 19 percent of water beyond the statutory limit. There was this notice stuck up in the house: "All spirits sold here are diluted in accord 9 Pearks, Gunston & Tee v. Ward [1902], 2 K. B. 1, 66 J. P. 774, 71 L. J. K. B. 656, 87 L. T. 51. 10 Pearks, Gunston & Tee V. Houghton [1902], 1 K. B. 889, 66 J. P. 422, 71 L. J. K. B. 389, 86 11 Hayes v. Rule, 87 L. T. 133, 18 T. L. R. 535. |