Bruner's application by taking from under the counter a package which she wrapped and handed to Bruner, and for which she charged and received twenty-five cents. The package was wrapped in a paper that had stamped upon it in large letters the word 'oleomargarine,' but which was not observed by Mr. Bruner until the day of trial of this cause. Appellant had previously given instructions to the young lady clerk to sell everything in the stall for just what it was, and to sell nothing as a substitute for something else. These facts," the court proceeded to say, "show that the sale was made by a clerk who was employed by appellant to sell oleomargarine from the particular stall, along with butter and other things. The sale was in the regular course of business, in the exercise of the usual duties of her employment, made for appellant, upon his apparent authority and for his benefit; and it seems clear that he should be answerable if he had failed to apply the necessary precautions in selecting, counseling and oversight of his agent; or, in other words, held responsible for what he had done by another.'' A sale of a glass of adulterated milk in a restaurant by a waiter renders the waiter's employer liable." It is not necessary, unless a statute expressly requires it, to aver that the sale was by an agent, in order to convict the principal. The general manager of a corporation engaged in selling food supplies at wholesale, who, in the course of such business, keeps in stock and sells, through traveling salesmen, an adulterated article of food, may be prosecuted, under a statute prohibiting the sale of impure and adulterated articles; and the place of the sale is the county in which the prosecution must be brought. Where a statute made it an offense to knowingly sell or bring to any cheese factory, 6 Groff v. State, 171 Ind. 547, 85 N. E. 769. The court refused to extend the adjudications in instances of sales of intoxicating liquor by barkeepers and servants to an instance of a sale of adulterated food. 7 Commonwealth V. Vieth, 155 Mass. 442, 29 N. E. 577. 8 Commonwealth v. Haynes, 107 Mass. 194. 9 Bissman v. State, 9 Ohio Cir. Ct. Rep. 714; Meyer v. State (Ohio St.), 43 N. E. 164. diluted, adulterated or skimmed milk, it was held that express authority from the owner to his servant to dilute, adulterate, or depreciate the quality of the milk in any particular manner was not necessary to constitute the offense, but it was sufficient to prove knowledge by the defendant that his servants or agents did deliver bad milk, on authority by them to do so.10 Where the owner is liable even though he did not know the milk was adulterated, upon a charge of a sale, it is proper to charge the jury that the defendant was guilty if he sold adulterated milk by his servant, in the ordinary course of business, even if he did not know it was not of standard quality, if there be no sugges tion that the servant violated his orders.11 Possession of servant is the possession of the master, in a prosecution for having in his possession adulterated milk or food with intent to sell it.12 So one selling milk at retail from house to house may bind his employer by representations to customers concerning the quality of the milk furnished; for such representations are within the apparent scope of his authority; but representations made by him to the State's inspectors are not binding on the principal.13 A grocer wrapped one 10 Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314. 11 Commonwealth v. Vieth, 155 Mass. 442, 29 N. E. 577. Where the officer making an analysis of milk had to notify the owner of the milk or his agent, it was held that where the milk went up to London by train, a railway porter at the terminus at which the milk arrived was not the agent of the seller for the purpose of receiving the notification. Rouch v. Hall, 6 Q. B. Div. 17, 45 J. P. 220, 50 L. J. M. C. 6, 29 W. R. 304. 12 Commonwealth v. Proctor, 165 Mass. 38, 42 N. E. 335. 18 People v. Terwilliger, 59 N. Y. Misc. 617, 110 N. Y. Supp. 1034. The admitted sale of milk which was below standard from a wagon belonging to the defendant, and from cans which contained the supply he had delivered to his customers, does not justify his conviction of selling milk below standard, where the evidence fails entirely to show that the boy who made the sale was authorized to sell milk, or had ever sold any before, but that he sold the milk on this occasion without the knowledge of the owner, while temporarily in charge of the wagon, and did not account to the owner for the money received therefore. Diersing v. State, 29 Ohio Cir. Ct. Rep. 469. Where the wife of a liquor dealer broke a bottle containing liquor when an inspector demanded a sam pound of oleomargarine for his own use, and laid it on the counter and went away. A customer came in and asked for one pound of salt butter. The clerk saw this package, did not know what it was for, but sold it to the customer. He had been told to sell butter only from bulk and not by the package. It was held that the grocer had violated the statute.14 § 573. Liability of Agent. An occasional statute can be found which makes it an offense for an agent to solicit orders for the purchase of adulterated food. And some of those statutes declare that the taking of an order for future delivery of an article "shall be deemed a sale" within their provisions. But if an agent solicits an order for pure food, and his principal fills it with an adulterated article, then such agent is not liable, for such a sale is a sale of pure food as to such agent, though a sale of impure food as to his principal.1 And where the agent of a wholesale house solicited an order for oleomargarine, and his principal, without his knowledge, shipped oleomargarine colored in imitation of pure butter in the name of the purchaser, but in care of the agent, it was held that the agent can not be convicted for selling oleomargarine colored in imitation of butter, for he has no right to open the package nor opportunity to inspect it; and he was justified in assuming that his principal had shipped the goods ordered, and not an adulterated article. But an agent who knowingly, at least, sells adulterated food violates the pure food statutes.3 ple of the liquor, so that none could be secured by him, it was held that the liquor dealer was not liable for her act. Taylor v. Nixon [1910], 2 Ir. Rep. 94. 14 Houghton v. Mundy, 103 L. T. 607, 74 J. P. 377, 8 L. G. R. 838. 1 People v. Morse, 131 Mich. 68, 90 N. W. 673, 9 Detroit Leg. N. 198; People v. Skillman, 129 Mich. 618, 89 N. W. 330, 8 Detroit Leg. N. 1090 (distinguishing People v. 2 Commonwealth v. Richards, 16 Montg. Co. Law Rep. 176. 3 Meyer v. State (Ohio St.) 43 N. E. 164; Myer v. State, 10 Ohio Cir. Ct. Rep. 226; State v. Walsh, (Wis.), 129 N. W. 656. § 574. When Sale must be by Agent to Make Principal Liable. Occasionally the sale must be by an agent to make the principal liable by reason of a peculiar phraseology of the statute. Such was held to be the case where a statute provided that no person, either by his servant or agent, or as the servant or agent of another person," should have in his custody or possession, with intent to sell, impure milk. It was held to apply only to agents and servants and not to the principals themselves. "Manifestly it is only a sale,” said the court, "exchange, delivery, custody or possession by or through a servant or agent or in the capacity of servant or agent for another, that is forbidden in this Act."" § 575. Knowledge Measure is too Small. Where an ordinance required all persons of a class who sold milk in bottles or glass jars within the city to sell it in bottles or glass jars of a certain capacity, it was held no defense that the dealer did not know that his bottles did not meet the requirements of the ordinance.1 1 State v. Squibb, 170 Ind. 488, 84 N. E. 969. 1 Chicago v. Bowman Dairy Co., 234 Ill. 294, 84 N. E. 913, 123 Am. St. 100. In England "oleomargarine" is called "margarine. The statutes of the several States sometimes define the word "oleomargarine," and in other instances they give a description of a substance which they may or may not call oleomargarine, and forbid its sale as a butter. An English statute defines "margarine" as meaning "all substances whether compounds or otherwise, prepared in imitation of butter, and whether mixed with butter or not;" and it defined "butter" as "the substance usually known as butter, made exclusively from milk or cream, or both, with or without salt or other preservative, and with or without the addition of coloring matter."" When this definition of margarine was in force a purchaser asked for margarine, and obtained margarine which contained 21 percent of water. The analyst certified that this was at least 5 percent more water than margarine should contain. The seller argued that by this definition the word "margarine" meant all substances pre150 and 51 Vict., ch. 29, § 3. |