Copeland v. Boston Dairy Co.

68 N.E. 218, 184 Mass. 207, 1903 Mass. LEXIS 972

Opinion

Loring, J.

The exceptions in this case must be sustained. By R. L. c. 56, §§ 56, 57, it is a criminal offence to sell milk which upon analysis is shown to contain less than the percentage of milk solids or milk fat there specified. A contract for the delivery of any other kind of milk would not support an action. See in this connection Miller v. Post, 1 Allen, 434. A contract to deliver milk means as matter of construction a contract to deliver milk up to the standard prescribed in R. L. c. 56, § 56, and a delivery of any other kind of milk would fail as matter of description to be a compliance with a contract to sell and deliver milk. The burden was on the plaintiff to prove that the milk delivered by him was up to this standard.

The pass books seem to have been admissible in evidence' without the testimony of the president of the defendant company which was objected to. As we understand the bill of exceptions, the collector or teamster was paid both by the plaintiff and the defendant. If so, he was their common agent, and a pass book kept by him was admissible against either.

JExceptions sustained.