
    Augustus J. Sawyer, administrator, vs. Benjamin Smith.
    No action lies to recover the price of hay sold by the ton, when weighed on scales, not provided by the buyer, which have not been sealed as required by the Gen. Sts. c. 51, § 16.
    Contract by the administrator of the estate of Luke Sawyer to recover the price of hay sold by his intestate to the defendant. At the trial in the superior court, before Wilkinson, J., it was agreed that the hay was sold to the defendant by the plaintiff’s intestate at a certain price per ton, and was weighed and delivered in 1870, in the towns of Stow and Sudbury; that neither of these towns appointed a superintendent of hay scales in the years 1869 or 1870 ; and that the {plaintiff’s intestate caused the hay to be weighed on scales, not provided by the buyer, which were not sealed as required by the Gen. Sts. c. 51, §§ 11, 12, in either of those years. The judge thereupon directed a verdict for the defendant, and reported the case for the determination of this court.
    
      J. Rutter, for the plaintiff.
    
      J. T. Joslin, for the defendant.
   Morton, J.

The hay, for the. price of which this suit ia brought, was sold by the plaintiff’s intestate in violation of law. The statement of facts finds that the hay was sold by weight, and was weighed upon private scales, selected by the seller and not provided by the buyer, which had not been adjusted and sealed by any sealer of weights and measures as required by the Gen. Sts. e. 51, §§ 11, 12. A sale by such scales was in direct violation of the Gen. Sts. e. 51, § 16.

The decisions are uniform, that, if a sale is made in contravention of a statute passed for the protection of the buyer, no action can be maintained for the price of the goods sold. Miller v. Post, 1 Allen, 434. Libby v. Downey, 5 Allen, 299. Smith v. Arnold, 106 Mass. 269.

Judgment for the defendant. 
      
       “ Whoever sells by any other weights, measures, scales, beams, or balances, than those which have been sealed as before provided, shall forfeit a sum not exceeding twenty dollars fol each offence; and when by the custom of trade they are provided by the buyer, if he purchases by any other weights, measures, scales, beams, or balances, he shall be subject to a like penalty, to be recovered by an action of tort to the use of the complainant.”
     