Smith v. Arnold

106 Mass. 269

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1871
• Status: Published

Opinion

Mostos, J.

The defendant contests one of the items in the plaintiff’s account, on the ground that the beef therein charged was sold in violation of law. It appeared at the trial that the plaintiff is, and was in 1868, an inhabitant of Stow; that on February 15, 1868, he sold the beef in question in that town; and that the weights and scales by which he sold it were not sealed by the sealer of weights and measures appointed for said town of Stow. It further appeared that the plaintiff’s weights and scales had been tested and sealed in the same year at Boston, by the sealer of weights and measures appointed for that city. The question is, whether this sale was in violation of section 16 of the Gen. Sts. c. 51.

This chapter does not provide in express terms that weights and measures shall be sealed by the sealer of the city or town in which.the person who sells by them resides; but we think this conclusion results by necessary implication from its various provisions. The eleventh section provides that “ every sealer of weights and measures shall annually in May advertise in some newspaper, or put up notifications in different parts of the city or town, for every inhabitant who uses weights and measures for the purpose of buying and selling, and for public weighers who have the same, to bring in their measures, weights, balances, scales and beams, to be adjusted and sealed; and he shall forthwith adjust and seal all weights and measures brought to him for that purpose.” By this section, the inhabitants of the town are to bring in their weights and measures to the sealer of the town, and he is to seal the weights and measures of such inhabitants, thus brought in. There is no other provision in the statute, for the sealing of weights and measures. The sixteenth section provides that “ 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 for each offence.”

By the necessary construction of this last section, every person who sells subjects himself to a penalty, unless the weights and measures by which he sells have been sealed as prov ded in the sixteenth section, that is, sealed by the sealer of the town of which he is an inhabitant. This construction was impliedly adopted by the court in Hewes v. Platts, 12 Gray, 143. As the weights and scales by which the plaintiff sold were not sealed according to law, it follows that the sale was illegal, and he cannot maintain an action to recover for the goods sold. Miller v. Post, 1 Allen, 434. Libby v. Downey, 5 Allen, 299.

It is hardly necessary to say that the St. of 1870, c. 218, having been passed since the sale by the plaintiff, has no application to this case. Exceptions sustained.