ance with the new excise regulations." It was held that this mere notice was no protection to A., but the question was whether the purchaser had been prejudiced.12 § 553. Sale of Food in Altered State-Disclosure of Alteration-Knowledge of Alteration. An English statute provides that: "No person shall, with the intent that the same may be sold in its altered state without notice, abstract from an article of food any part of it so as to affect injuriously its quality, substance or nature, and no person shall sell any article so altered without making disclosure of its alteration."" Under this section, if at the time of the sale the vendor gives notice to the purchaser that the food has been altered or part of its strength abstracted, he does not violate this section. But if no such notice has been given it is no defense to a prosecution under it for him to plead he had no knowledge of the alteration at the time of the sale. Thus, where a milk seller sold milk from which 28 percent of the original fat had been abstracted, without making disclosure of the alteration, and no evidence was given that the person selling it had knowledge of the alteration, and the seller gave no evidence he had no such knowledge, and his daughter, who sold the milk, denied all knowledge of the alteration, it was held that he had violated the provisions of this section. In another instance a milk dealer poured into the pail eight gallons of unskimmed milk, which she sold therefrom to her customers in small quantities, dipping it out of the pail from time to time with a measure. The sale of the contents of the pail extended over a space of between four and five hours, during the whole of which time, owing to the neglect of the seller to keep the milk stirred, the cream was continually rising to the surface. When not more than two quarts of the milk remained a buyer purchased of her a pint of milk from the pail, which, upon analysis, showed a 12 Morris v. Askew, 57 J. P. 724; Palmer v. Tyler, 61 J. P. 389. 1 38 and 39 Vict., ch. 63, § 9. 2 Pain v. Boughtwood, 24 Q. B. Div. 353, 54 J. P. 469, 59 L. J. M. C. 45, 62 L. T. 284, 38 W. R. 428, 16 Cox C. C. 747, 6 T. L. R. 167. deficiency of 33 percent of fatty matter. She did not disclose to the purchaser this deficiency, which was entirely due to the manner in which the early customers had been served. The court held that the words "so altered" in the statute quoted referred to a physical alteration of the article, irrespective of the intent with which the alteration was made, and that she, in selling the milk so altered without giving notice of its condition, had been guilty of an offense under this statute. "It is not necessary in the interests of the public," said Lord Coleridge, "to prohibit the mere alteration of an article of food, unless the alteration is coupled with the intent of selling it in its altered state without notice, for the mere alteration without such intention may be perfectly innocent. Where, however, the alteration is followed by the actual sale, the intent with which the article was altered must become perfectly immaterial, the injury to the purchaser being just the same whether there was a wrongful intent or not. '' In still another case the facts were as follows: The servant of a dairyman, being short in his supply of milk, bought two gallons from another dairyman and mixed it with his own. The milk so bought he sold to various customers. An inspector bought half a pint of it, and it was found to be deficient in cream to the extent of 20 percent. The dairyman was accordingly prosecuted under this statute. It was held that, though neither the dairyman nor his servant knew, or had reason to know, that cream had been abstracted from the milk, this was no defense. A few cases have been decided construing the word "disclosure" as used in this statute. Thus, one Davies sold a can of condensed milk which had upon it a label on which was printed the words, "Condensed Milk, Swiss Dairy Brand," and in smaller type, "This can contains skimmed milk." The analysis of the contents of the can showed a deficiency of 93 percent of butter fat, but, though the purchaser's attention had not been called to the words on the label at the time of the sale, the 3 Dyke v. Gower [1892], 1 Q. B. 220, 56 J. P. 168, 61 L. J. M. C. 70, 65 L. T. 760, 17 Cox C. C. 421, 8 T. L. R. 117. 4 Morris v. Corbett, 56 J. P. 649. court held that this was a sufficient "disclosure of the alteration" under this statute.5 Well-known refreshment contractors were prosecuted for selling milk from which 17 percent of cream had been extracted. The deficiency was caused by the milk being poured out in such a way that the greater part of the cream remained in the vessel from which it was poured. The milk was supplied in a glass whereon was distinctly written in blue color the words, "Not guaranteed as new or pure milk, or with all its cream; see notices." On the counter, a few feet from the place where the purchaser was standing when he was served with the milk, and facing the entrance to the refreshment rooms from the street, was placed a framed notice in these words: "Milk Notice. Spiers and Pond, Limited, purchase all milk sold by them under a warranty of its purity and genuine quality, and take all possible precautions to insure its supply to their customers in proper condition, but they are unable to guarantee it as either new, pure, or with all its cream, and (to meet the requirement of the Sale of Food and Drugs Act) do not, therefore, sell it as such." It was held that the alteration had been sufficiently disclosed, and that the vendor of the glass of milk was not liable. A can of condensed milk was sold as "condensed skimmed milk;" 97 percent of the original fat had been abstracted by the use of a separator. It was shown that not more than 63 percent can be abstracted by skimming. The magistrate held that the words "skimmed milk" did not properly describe the alteration. The High Court held that it was a question of fact whether the description was sufficient, and that the magistrate's decisions could not be interfered with. A statute making it an offense to sell an article of food if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it, is not violated by a sale of a package containing a manufactured 5 Jones v. Davies, 57 J. P. 808, 69 L. T. 497; Platt v. Tyler, 58 J. P. 71. 6 Spiers & Pond V. Bennett [1896], 2 Q. B. 65, 60 J. P. 437, 65 L. J. M. C. 144, 74 L. T. 697, 44 W. R. 510, 18 Cox C. C. 332. 7 Petchey v. Taylor, 62 J. P. 360, 78 L. T. 501, 19 Cox C. C. 38. product of the cocoa bean, and labeled "Breakfast Cocoa," from which a portion of the natural oil has been abstracted, where the abstraction of the oil is necessary to render the article marketable. § 554. False Representations Made Before Sale at Variance with Label. A false representation concerning the nature, substance and quality of the article demanded, made by the seller prior to the sale, does not constitute a violation of a statute providing that the true nature of the article of food or drug shall be disclosed at the time of the sale. Thus, a milkman stated to an officer that some cans contained new milk, but afterwards, on the officer intimating that he would have some, declared that it was old milk, and not new. The magistrates decided that this was not a sale of new, but of old milk, and that there had been no misrepresentations made at the time the sale was actually consummated.' A similar case arose in Scotland. There a milk seller on his rounds ran short of milk, and bought a further supply from a dairyman. An inspector asked him for some "sweet milk." He was going to supply him from what was left of his own milk, but the inspector insisted upon being supplied from the can containing the purchased milk. He told the inspector before the purchase that it was not his own milk, and warned him that it might or might not prove to be sweet milk. The milk turned out to be adulterated. The seller was acquitted. If a false representation is made at the time of the purchase an offense is committed, even though the purchaser must have known from the price paid that the representation was false. Thus, 8 Rose v. State, 11 Ohio Cir. Ct. Rep. 87, 1 Ohio C. D. 72, reversing 2 Ohio N. P. 270. Patented articles of food must be labeled if other foods must be. Palmer v. State, 39 Ohio St. 236, 48 Am. Rep. 529. 1 Kirk v. Coates, 16 Q. B. Div. 49, 50 J. P. 148, 55 L. J. M. C. 182, 54 L. T. 178, 34 W. R. 295. 2 Frew V. Gunning, 3 Fraser (J. C.) 51, 3 Adam 339, 38 Sc. L. R. 555. See Sandys v. Jackson, 69 J. P. 171, 92 L. T. 646, 3 L. G. R. 285. a milkman sold a pint of milk for a penny as new milk, though it in fact was skimmed milk. Although the purchaser knew it was skimmed milk, yet it was held that the vendor had violated the statute. In another instance an inspector asked for "paregoric," and was given a bottle labeled "Paregoric Substitute," but wrapped in an opaque wrapper. The substitute contained no opium, an essential ingredient according to the British Pharmacopoeia. The assistant who served him, being unqualified, was not permitted by law to sell opium, and the next day the employer wrote and apologized for the "technical error" of not informing the inspector at the time. The justices trying the seller found that there was no prejudice to the purchaser, and the High Court held that there was evidence to support their findings.* § 555. Fraudulent or False Label. 991 An English statute provided that no one shall be guilty of a violation of its provisions "in respect to the sale of articles of food or a drug 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 or drug he shall supply the person receiving the same a notice, by a label distinctly or legibly written or printed on or with the article or drug, to the effect that the same is mixed. When the mixture is sold in a labeled package, this statute requires justices to determine whether the admixture has been made for any of the fraudulent purposes above mentioned. This is purely a question of fact. In one case where the inspector asked for coffee he received a packet with a label describing it as a mixture of coffee and chicory. The analyst's certificate showed that it was composed of 60 percent of chicory and 40 percent of coffee. The magistrates decided that the seller was not protected by the label, as the 60 percent of chicory was used for 3 Heywood v. Whitehead, 76 L. T. 781. 4 Bundy v. Lewis, 72 J. P. 489, 99 L. T. 833, 7 G. R. 55. This case is regarded, however, valueless as an authority. 138 and 39 Vict., ch. 63, § 8. |