the purchase was completed at the time of the removal and not at the time of the arrival, and that, therefore, the dairyman could rely on the warranty." A servant or agent who has obtained a warranty is not protected by a warranty given his master or principal, in cases where such servant or agent is prosecuted as seller.28 A subsequent statute29 provided that a warranty or invoice should not be available as a defense to any proceeding under the Sale of Food and Drugs Acts unless the defendant, within seven days after service of the summons, sent to the purchaser a copy of such warranty or invoice with a written notice that he intends to rely on the warranty or invoice." But under the decisions the actual words of the warranty need not be set out, if its terms are distinctly stated. Thus where the defendants entered into a contract for a periodical supply of milk to them by a farmer with a warranty of its purity, the contract of warranty being contained in a number of letters between the parties, and each can of milk was labeled "warranted pure;" and on being prosecuted the defendants gave notice that they relied upon a warranty, and sent a copy of the label on the cans, but did not disclose the correspondence, it was held that there was a sufficient compliance with this statute just quoted, the court saying that "A copy of the correspondence would not be half as useful as a copy of the terms of the warranty."81 A purchaser bought butter under a verbal contract that a written warranty should be given and put upon the invoice. The invoice arrived on the same day, and contained the words, "We guarantee all butter sold by us to be absolutely pure." The purchaser was not satisfied with this, so a week later, after the delivery of the butter, he induced the seller to add the words, "Guar

27 Sanders v. Sadler, 71 J. P. 3, 95 L. T. 872, 5 L. G. R. 240.

28 Hotchin v. Hindmarsh [1891], 2 Q. B. 181, 57 J. P. 775, 60 L. J. M. C. 146, 65 L. T. 149, 39 W. R. 607. This has been changed in England by statute. 62 and 63 Vict., ch. 51, § 20. On this section

20, see Manners v. Tyler [1902], 1 K. B. 901, 71 L. J. K. B. 585, 86 L. T. 716, 50 W. R. 604.

29 62 and 67 Vict., ch. 51, § 20. 30 38 and 39 Vict., ch. 63.

31 Irving v. Callow Park Dairy Co., 66 J. P. 804, 87 L. T. 70.

1132

anteed pure butter in accordance with the third and seventh sections of the Margarine Act, 1887." The butter was adulterated and he was prosecuted. His solicitors then wrote to the prosecutor giving notice of warranty, and said: "The following is a copy of the warranty," setting out the two sentences above mentioned. The court held that under all the circumstances of the case the notice was sufficient, saying: "I think section 20, which requires a copy of the warranty to be delivered to the complainant, did not mean to say that under all circumstances the warranty must be correctly set out where there is room for contention as to what the warranty actually was. A statute of the State of Missouri provides that no dealer shall be prosecuted under its provisions when he can establish a guaranty as provided by the National Food and Drugs Act of June 30, 1906, or a guaranty signed by a wholesaler, jobber or manufacturer either residing within the State or who shall have complied with the requirements for service of process in proceedings under the Act, to the effect that the products are not adulterated or misbranded in the original unbroken packages. It was held that this did not militate against the liability, under the act of dealers in food and dairy products, for placing therein substances which are "poisonous or injurious to health in any quantity for any purpose whatsoever;" the meaning of the statute being merely to relieve the dealer of the necessity of analyzing each and every unbroken package sold or consigned to him, and to authorize him to sell from such packages, under the guaranty mentioned thereon, providing the wholesaler, jobber, or manufacturer has complied with the provisions of the statute.34 A vendor of milk had been supplied with milk by a farmer for years. In September, 1908, the farmer gave the vendor the following signed letter: "I hereby guarantee and warrant that all milk supplied by me to you is of the nature, quality and substance demanded by law. And I give this warranty for the pur

32 Farthing v. Parkinson, 68 J. P. 353, 90 L. T. 783, 20 Cox C. C. 661,

2 L. G. R. 989.

PURE FOOD-47.

88 Acts 1907, p. 242, § 12.

34 St. Louis v. Wortman, 213 Mo. 131, 112 S. W. 520.

poses of the sale of the Food and Drugs Act, 1899." It was held that this warranty applied to all future deliveries of milk, and that the vendor was entitled to the protection a vendor was given by the statute in reselling an adulterated article when he had purchased it under a warranty that it was unadulterated and pure.35 A farmer supplying milk gave a warranty: 'I hereby guarantee and warrant that all milk supplied by me to you is of the nature, quality and substance demanded by law. And I give this warranty for the purposes of the Sale of Food and Drugs Act, 1899." It was held to be a continuing warranty and protected the reseller.36

§ 572. Sales by Agent.

One who sells adulterated food by an agent violates the statute prohibiting the sale of such food just as much as if he in person made the sale. It is always a question whether the person making the sale had authority from the defendant to make it; and that authority must be shown before the defendant can be found guilty. Like any other question of agency it may be proven either by direct or circumstantial evidence. Thus upon a charge of a defendant having in his possession adulterated milk with intent to sell it, and it is shown that his servant had possession of it, it must be shown that such servant was acting for and in accordance with the

35 Draper v. Newnham, 102 L. T. 280, 74 J. P. 124, 8 L. G. R. 144.

A warranty to supply "milk” does not require the furnishing of "pure" milk. Ford v. Urquhart, 21 Vict. L. R. 688, 17 Aust. L. T. 297, 2 Aust. L. R. 110.

36 Draper v. Newnham, 102 L. T. 280, 74 J. P. 124, 8 L. G. R. 144.

1 Newton v. Reed, 10 N. J. Law Jour. 175; Harvey v. Newton, 52 N. J. L. 369, 19 Atl. 793; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; State v. Smith, 10 R. I. 258; Hunter v. State, 1 Head 160,

73 Am. Dec. 164; Commonwealth v. Gray, 150 Mass. 327, 23 N. E. 47; Heider v. State, 4 Ohio S. & C. P. Dec. 227; Meyer v. State (Ohio St.), 43 N. E. 164 (principal to be tried in county where sale takes place); People v. Terwilliger, 59 N. Y. Misc. 617, 110 N. Y. Supp. 1034; Williams v. State, 25 Ohio Cir. Ct. Rep. 673; Myer v. State, 10 Ohio Cir. Ct. Rep. 226; Diersing v. State, 29 Ohio Cir. Ct. Rep. 469; Houghton v. Mundy, 103 L. T. 60, 74 J. P. 377, 8 L. G. R. 838.

3

will of his master, the defendant.2 Where a clerk in his principal's store makes a sale of adulterated food or oleomargarine, apparently in the ordinary course of business, proof of that fact is prima facie evidence of a sale by such principal. If the sale was unauthorized, yet closed in the ordinary course of business, the principal will nevertheless be liable for it personally. Thus the Supreme Court of Indiana has said in a recent case: "The sale of oleomargarine in an adulterated form, or as a substitute for butter, is a crime against the public health. Whoever, therefore, engages in its sale, or in the sale of any article interdicted by the law, does so at his peril, and impliedly undertakes to conduct it with whatever degree of care is necessary to secure compliance with the law. He may conduct the business himself, or by clerks or agents, but if he chooses the latter the duty is imposed upon him to see to it that those selected. by him to sell the article to the public obey the law in the matter of selling; otherwise, he, as the principal and responsible proprietor of the business, is liable for the penalty imposed by statute. We do not believe that it was the legislative intent that such proprietor should escape by showing that an unlawful sale made by his clerk was unauthorized. We must take a practical, common-sense view of the whole statute, to give effect to the legislative purpose. To hold that the proprietor should be held liable only when the sale was made in his presence, or with his knowledge or consent, would be to prepare a way of easy escape. When we take into consideration the community of interest of the proprietor and clerk, in a case like this, and that private instructions to a clerk may be given in such a way that there may be more meaning in the manner than in the words spoken, and adding thereto the fact that the modern method. of ordering supplies by telephone renders the identification of the seller generally impossible, we are led to the conclu

2 State v. Smith, 10 R. I. 258; Commonwealth v. Hough, 1 Pa. Dist. Rep. 51.

3 State v. Bockstruck, 136 Mo.

335, 38 S. W. 317; Hunter v. State, 1 Head (Tenn.) 160, 73 Am. Dec. 164; Newton v. Reed, 10 N. J. Law Jour. 175.

sion that to sustain appellant's contention would operate as a virtual overthrow of the statute." After making several quotations, the court concludes with this language: "While the adjudications are not in harmony, as indicated by the text quoted, we think the better reason and weight of authority are to the effect that when the element of guilty knowledge and intent is eliminated from an offense, and the doing of the act by any person is interdicted, the principal shall be held to answer for the delinquency of his agent while the latter is engaged in performing the usual duties of the agency." In a nisi prius Ohio case it was said: "To hold that by private instructions to a clerk a person in the oleomargarine business might escape prosecution or punishment, would go a long way, it seems to us, toward destroying the beneficial effects and purposes of this law. In many cases such goods are ordered by telephone, and the clerk is not seen; there is no way of identifying him. Where the article is sold by his authority, it is not like a case where a party has prohibited his clerks from selling the article at all, or where the clerk without any authority has sold the article, or where some one has come into his store without authority and sold the article. But here is a case where the party is engaged in the business of selling, where he intends to sell it, and where his clerks are authorized and employed to sell it.''5 In the Indiana case from which a quotation has been made, the facts were these, as stated by the court: "Appellant is the proprietor of a stall in the Indianapolis market house. Among other food products, he keeps for sale oleomargarine and creamery butter, but not dairy butter. April, 1907, one Bruner, an inspector in the employ of the State Board of Health, presented himself at appellant's stall and asked for one pound of dairy butter. Appellant was not present. The stall was in the sole charge of a young woman, a clerk and employe of appellant, who answered

4 Groff v. State, 171 Ind. 547, 85 N. E. 769.

5 Williams v. State, 4 Ohio C. C. (N. S.) 13, 25 Ohio Cir. Ct.

Rep. 673; affirmed 69 Ohio St. 570, 70 N. E. 1135; Houghton v. Mundy, 103 L. T. 60, 74 J. P. 377, 8 L. G. R. 838.