
    Genesee Valley Milk Products Company, Appellant, v. J. H. Jones Corporation, Respondent. Genesee Valley Milk Products Company, Appellant, v. J. H. Jones Corporation, Respondent.
    (Action No. 1.)
    (Action No. 2.)
    Fourth Department,
    March 8, 1911.
    Food — sale of condensed milk not complying with statute — when buyer liable for purchase price.
    A person -who buys condensed milk made from one-half skimmed milk and one-half whole milk is liable for the purchase price, although section 37 of the Agricultural Law provides that no condensed milk shall be made or sold unless made from pure unadulterated milk from which the cream has not been removed, etc., if the nature of the product sold was fully understood by the buyer and seller.
    Spring and Williams, JJ., dissented, with opinion.
    Appeal in each of the above-entitled actions by the plaintiff, the Genesee Valley Milk Products Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 18th day of October, 1910, upon the decision of the court rendered after a trial at the Monroe Trial Term, a jury having been waived, dismissing the complaint upon the merits in each case.
    
      George A. Carnahan, for the appellant.
    
      Paul A. Pelletreau, for the respondent.
   McLennan, P. J.:

These two cases, argued together and known as Nos. “ 1 ” and “ 2,” present a very unusual situation.

Action No. 1 was commenced to recover the sum of $2,011.02, the lue of goods sold and delivered by the plaintiff to the defendant, action No. "2 was brought to recover on a promissory note for $855.25, which was given for goods sold and delivered by the plaintiff to the defendant. The answer to each of such causes of action interposed by the defendant, and which has been held to be a good defense, is that the promise to pay for the goods delivered and the note given for the purchase price of part of such goods were all in violation of section 37 of the Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9). In other words, that the goods sold and delivered to the defendant were of such character that it, the plaintiff, could not sell or deliver them and create any obligation as against the purchaser, the defendant, upon such sale and delivery.

There is no question of fact presented by this appeal.

The defendant knew and was specifically informed as to the contents of the product which it was purchasing from the plaintiff. It knew that it was “ half and half,” which meant in the trade and was understood by everybody that it was to be made from one-half skimmed milk and one-half whole milk. There is no pretense in this case that the defendant did not know exactly the character of the condensed milk which it was receiving from the plaintiff under its contract. There was no fraud or mistake by either party. In other words, the defendant, with full knowledge of all the facts, received exactly the product it contracted for, to wit, half and half,” meaning one-half skimmed milk and one-half whole milk. Neither is there any pretense or suggestion that the defendant did not sell the product to its customers and receive in return all that it contracted for.

Regardless of the provisions of the Agricultural Law, to which attention has been called, we think it is not competent for a vendee to receive from his vendor certain property and thereafter sell such property at the market price, and then in an action brought to recover the contract price-say, “I will not pay the vendor,” especially when no damage has resulted to the vendee from such sale.

But in this case we think the Legislature was entirely without power to declare that skimmed milk should not be a part of condensed milk with certain proportions of whole milk. There is no suggestion that there is anything unwholesome about skimmed milk, and if it is sold as such, it seems to me no one ought to complain.

In the case at bar there is no suggestion that as between selle and buyer there was any misrepresentation or mistake. • The buyer knew exactly that the proportion of skimmed milk and whole milk which was put into the product was “ half and half.” If the buyer sold such product under a false label, of course it was within the condemnation of the statute.

The defendant in this case, it seems to me, had no excuse for not keeping its obligation to pay for the product which it received and which it, in turn, according to the uncontradicted evidence, had sold to its customers at the market value.

It follows, therefore, that the judgments appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

Kruse and Robson, JJ., concurred in result in separate memorandum by Kruse, J.; Spring and Williams, JJ., dissented, in an opinion by Spring, J.

Kruse, J. (concurring):

I concur in the result reached by the presiding justice, but am of the opinion that if the milk product was made and sold in violation of the Agricultural Law, no recovery can be had for the purchase price thereof. I think, however, it was not so made or sold. Section 37 of the Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9), which it is contended was violated, reads as follows: “No condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk from' which the cream has not been removed either wholly or in part, or unless the proportion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats. No person shall manufacture, sell or offer for sale or exchange in hermetically sealed cans, any condensed milk unless put up in packages upon which shall- be distinetly labeled or stamped the name of the persons or corporation by whom made and the brand by which or under which it is made. When condensed milk shall be sold from cans or packages not hermetically sealed, the vendor shall brand or label such cans or packages "rith the name of the manufacturer of the milk contained therein.”

Condensed milk is a well-known milk product. The statute prescribes that this product, “condensed milk,” shall not be made, offered or exposed for sale or exchange unless manufactured from milk of a prescribed quality and condition. But, as it seems to me, the making and selling of a condensed mixture of whole and skimmed milk are not prohibited, if made and exposed for sale, not as condensed milk,” but for what it is, as was done in this case.

This statute should receive a reasonable and not a strict interpretation. It certainly cannot be that the Legislature intended to prohibit absolutely the making of a condensed mixture of whole and. skimmed milk. Ror do I think the manufacture or sale of such an article as food is forbidden, if put on the market for what it actually is, and not as condensed milk. Pure skimmed milk, either alone or mixed with whole milk, is not unwholesome, nor is it claimed to be.

The product was made by the plaintiff for the defendant precisely as the defendant ordered it to be made. There is no claim of misbranding or deception in its manufacture or sale.

As regards the plaintiff, I think there was not a making or offering or exposing for sale of condensed milk within the meaning of the Agricultural Law. Whether the defendant so put the article on the market and sold it as to violate the provisions of the statute, we do not know. If it did, that affords no good reason for closing the courts against the plaintiff, who did not, and preventing the plaintiff from recovering of the defendant the purchase price of an article made as defendant directed, sold for what it'is and not put on the market by plaintiff so as to mislead or deceive either the defendant or the public in buying or consuming it.

Robson, J., concurred.

Spring, J. (dissenting):

I do not assent to the conclusion reached by the majority of the court.

Section 30 of the Agricultural Law (Consol. Laws, chap. 1 [Laws of 1909, chap. 9], as amd. by Laws of 1909, chap. 186, and Laws of 1910, chap. 341) defines with much particularity the term “ adul terated milk.” Subdivision 7 is as follows: “ Milk from wliicl any part of the cream has been removed.” Section 37 of that act is entitled “Regulations in regard to condensed milk,” and relates to that subject exclusively. It provides: “Mo condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk from which the cream has not been removed either wholly or in part, or unless the proportion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats.”

• The facts in this case, which are undisputed, show that the plaintiff, a Monroe county corporation, sold and delivered to the defendant, a corporation in the city of Mew York, during the year 1910, a large quantity of condensed milk which was shipped in cans from time to time as ordered. The evidence does not show whether any of these cans were labeled. The statements of account rendered by the plaintiff to the defendant appear in the appeal book, and, as a sample, they are in the following form: “ 39 Cans Oond. Milk ^ $3.75, $146.25.” There is no controversy as to what the cans contained. The expression “ half and half,” as both parties knew, indicated that the contents were composed of one-half skimmed milk,, that is, milk from which the cream was removed, and one-half pure milk. The expression “half and half” also had a well-understood meaning in the milk business, and it was the kind of milk which the defendant ordered. The defendant sold this product to its customers, and has been paid in part for the sales which it made.

It seems to me that the plaintiff in selling this product is within the express provisions of section 37 of the Agricultural Law. It “ made ” condensed milk, and sold it, which was not manufactured from “ unadulterated ” milk; or, in other words, “ milk from which the cream has not been removed either wholly or in part.” As between the parties, of course, we may say the defendant should pay when it received what it ordered. If, however, the plaintiff has committed a misdemeanor by violating this statute (Agricultural Law, § 52), I take it, it cannot recover. If a man purchase on credit a gallon of whisky or other article from one prohibited from selling it, no legal liability is created, although the purchaser sells and z’eceives cash for the same product (Griffith v. Wells, 3 Den. 226; Tiffany Sales, § 77, pp. 140 et seep), and that principle holds good here.

The controlling principle in construing a statute of this kind is to ascertain the evil which the Legislative is seeking to prevent or eradicate. Condensed milk has become a product zzsed extensively. It is contained in cans, and only an expert can discover the ingredients which znay compose the preparatiozi. The Legislature, in order to make certain that it should be composed solely of wholesome milk, fixed an arbitrai’y standard for this product. It pursued the same course in defining adulterated milk when it provided that if it contained more than eighty-eight per centum of water or fluids it "was within that term. If condensed znillc should consist partly of skimmed znillc, I assume that it would not be deleterious to public health. That is also true of milk if it contains ninety pei’centuzn of water, instead of the tnaxitnum percentage presez-ibed in the statute. The point is that the Legislative was seeking to regulate the manufacture and sale of a product of universal consumption. In order to make effective any legislation upon the subject it was necessaz*y to pz’escribe definitions and arbitrarily, as we znay say, fix standai-ds, and if they were transcended by the seller of milk the statute was violated and he was liable for the penalty imposed, or even for a misdemeanor, although no evil effects resulted or were likely to z-esult. Inasmuch as condensed znillc is so generally used and the public can be deceived so easily as to its component parts, the mazzufactuz’er and seller have been held to a very rigid rule, and that is that condensed milk must contain only unadulterated milk.

It has frequently been held that whether the manufacturer or seller intended to deceive is unimportant. (People v. Bowen, 182 N. Y. 1, 6.; People v. Killer, 106 id. 321; People v. Cipperly, 101 id. 634, reversing 37 Hun, 319, on dissenting opinion delivered below.)

Nor do I think that the Legislature transgressed its authority in fixing the arbitrary standard which it did. The statute in its general features, especially pertaining to the watering of milk, has been frequently upheld. (People v. Beaman, 102 App. Dir. 151; People v. Bowen, 182 N. Y. 1, 6, supra.)

The troublesome question is the claim that it was not intended by the Legislature to make it a misdemeanor or to prohibit in any way the making of a preparation consisting of skimmed milk and whole milk and selling it, provided the purchaser is apprised of the exact parts of which the product is made. There is no prohibition in the statute against selling skimmed milk. On the contrary, the right to sell it seems to be recognized. It would follow that to sell skimmed milk condensed would not be a violation of the prohibition of the sale of condensed milk, as that term is defined in the statute. There is much force in this suggestion, but it seems to me that the statute has a broader purpose than this interpretation would give to it. The milk was sold in cans, apparently unlabeled by the defendant, in large quantities and, of course, it was expected to he sold to numerous consumers and used by them. The chances are that the ultimate consumer would believe that the condensed milk which he was using was that which the statute has defined. It was the public health generally which the Legislature had in mind and to prevent the spurious product from being sold, not primarily to a milk company, but to the multitude who use it.

Again, it is to borne in mind that the plaintiff designated this as condensed milk, which, as already stated, is defined by the statute, and then seeks to inform its purchaser that it is not condensed milk at all, but a preparation or combination of pure milk and adulterated milk in equal quantities. It might have added a substance to it in order to preserve it; or, if it could be retained in the- combination, have added water to it and still be exonerated, if it only said in its statement of account that it is condensed milk, but contains other ingredients than milk itself.

While there is no specific prohibition against the sale of skimmed milk, yet section 44 of the Agricultural Law apparently restricts its sale. That section, which is not applicable to the counties of New York and Kings, provides that the prohibitions against the sale of adulterated milk are not applicable" to the sale of skimmed milk if sold for and as skimmed milk for use in the county in which it is produced, or an adjoining county.

The reasonable inference would seem to be from this statute that a sale made not within the express provisions of this statute is prohibited. This milk was produced in Monroe county and sold in the county of Mew York, so that the plaintiff is not exculpated, but, rather, condemned, by the section referred to.

I, therefore, think that the judgment should be affirmed.

Williams, J., concurred.

In each action judgment reversed and new trial ordered, with costs to appellant to abide event, upon questions of law and fact.  