Commonwealth v. Smith

20 N.E. 161, 149 Mass. 9, 1889 Mass. LEXIS 101

• Court: Massachusetts Supreme Judicial Court
• Decided: March 1, 1889
• Status: Published

Opinion

W. Allen, J.

The complaint is for selling milk not of the standard quality of pure milk, that is, milk containing less than thirteen per cent of milk solids. The defendant had a right to sell skimmed milk, which is not of the standard quality of pure milk, from cans marked in a certain manner. If he sold milk not of the standard quality of pure milk, and not sold as skimmed milk from duly mai'ked vessels, he would be liable on this complaint; if he sold milk as skimmed milk from duly marked vessels, he would not be liable. Commonwealth v. Tobias, 141 Mass. 129. Upon evidence tending to prove that the milk sold was skimmed milk, and that it was sold from a measure duly marked, the jury were instructed that the defendant would be liable, unless he sold the milk, not as pure milk, but as skimmed milk.

The jury were further instructed, that the defendant would be liable unless the buyer had notice or knowledge that the milk was skimmed milk. We think this instruction was wrong. The question whether the defendant sold the milk as skimmed milk or as pure milk was a question of fact for the jury upon all the evidence. The fact that the buyer did not know that he bought skimmed milk would not afford an inference of law that the seller sold it as pure milk. If the defendant sold the milk in the lawful and the usual manner in which he sold skimmed milk, and for the usual price of such milk, and if he had reason to believe that that was what the purchaser intended to call for and expected to receive, it would be competent for the jury to find that he sold it as skimmed milk, and not as pure milk, although he may have mistaken the intention of the purchaser.

Exceptions sustained.