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company, it was held that it was not liable in damages for the death of one who drank the water and contracted typhoid fever.1

§ 652. Food for Cattle and Horses.

If a vendor of hay, knowing that some poisonous substance had been spilt upon it, but believing he had separated the hay thus contaminated from the remainder, sell of that remaining in which some of the poisonous matter still remains, he will be liable to the purchaser whose cattle or horses eat it and are injured thereby.1 But in the absence of negligence on his part, it was held in one case that a miller is not liable as upon an implied warranty for injury to cattle from bran bought from him into which, without his negligence, pieces of metal had accidentally fallen. The seller of bran, knowing that the buyer desired to use it as food for his stock and wanted pure wheat bran, is liable for damages caused by the delivery of mixed food. Where a contract for the sale of corn chops was evidenced by a written order for the chops requiring them to be "delivered guaranteed," it was held that there was a guaranty of merchantable quality on delivery. A statute of Michigan regulated the sale of "all condimental stock foods, patented and proprietary stock foods, claimed to possess nutritive properties and all other materials intended for feeding to domestic animals." This was held to include a preparation advertised as food, which, in addition to the possession of medicinal properties, "fattens both cattle and hogs quickly, makes them grow larger and healthier and makes their meat tender, more

1 Buckingham v. Plymouth Water Co., 142 Pa. 221, 21 Atl. 824. A city may prohibit bathing in water to be used in supplying its inhabitants with water. State v. Morse, 80 Atl. 189.

1 French v. Vining, 102 Mass. 132, 3 Am. Rep. 440.

2 Lukens V. Freund, 27

Kan.

664, 41 Am. Rep. 429. The court thought it would be different with human food.

3 Houk v. Berg (Tex. Civ. App.), 105 S. W. 1176.

4 Kimball-Fowler Cereal Co. v. Chapman & Dewey Lumber Co., 125 Mo. App. 326, 102 S. W. 625. 5 Public Acts 1893, p. 421.

juicy and better eating and produces bone, muscle and better staying powers, improves the wind," though the label stated. "P's food is a regulator, to be used according to directions, and is not sold as a feeding stuff nor is it to be fed in place of grain or any other feed.""

§ 653. Slander.

To charge one with selling adulterated food as pure food. may be a slander or libel. Thus where an article in a newspaper charged butter had been sold as pure creamery make, and that the commodity was 40 percent butter and the remainder grease; and that persons dealing with the plaintiff had been misled in purchasing such butter, it was held libelous per se, for the acts so charged involved moral turpitude in the plaintiff, both as an individual and as a dealer in such commodity.1

§ 654. Recovering Purchase Price on Sale of Impure Food.

If a person sells unwholesome food, the sale of which a statute makes an offense, he can not recover the purchase price from the purchaser. Such was held to be the case of a sale of watered milk, the sale of which a statute prohibited, and it was held that the fact the purchaser had an opportunity to examine the milk, and accepted it after such examination, did not change the rule.1 So the purchase price of adulterated coffee can not be recovered, where a statute prohibits the sale of adulterated coffee as food.2 So one selling a powder for use with an apparatus for preserving fruit, which contains sulphur, can not recover the purchase price, where the use of the sulphur for that purpose is pro

6 Pratt Food Co. v. Bird, 148 Mich. 631, 112 N. W. 701, 14 Detroit Leg. N. 304, 118 Am. St. 601.

1 Dabold v. Chronicle Pub. Co., 107 Wis. 357, 83 N. W. 639; Witte v. Weinstein, 115 Iowa 247, 88 N. W. 349.

1 Hecht v. Wright, 31 Colo. 117,

72 Pac. 48; State v. Smith, 69 Ohio St. 196, 68 N. E. 1044.

2 Crossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401, affirming 171 N. Y. 329, 63 N. E. 1097, 33 N. Y. App. Div. 422, 54 N. Y. Supp. 72.

hibited by statute. A buyer can not recover back the price of an apparatus for preserving fruit because powders used therewith contain sulphur for that purpose was not in fact deleterious, so as to render the apparatus worthless.3

§ 655. Liability for Price of Adulterated Food Sold as Pure Food.

A purchaser can not be compelled to accept nor pay damages for nonacceptance of an article of food so adulterated as to come within the provisions of a State statute prohibiting its sale, even though the adulterated article is equal to the standard specified in the contract.1

3 Smith v. Alphin, 150 N. C. 425, 64 S. E. 210.

1 Crossman v. Lurman, 192 U. S. 189, 24 Sup. Ct. 234, 48 L. Ed. 401, affirming 171 N. Y. 329, 83 N. E. 1097. In this case it was held that a contract made in New York, for the sale of goods to be delivered and stored in New York

on arrival from a oreign port is a New York contract governed by the laws of New York, even though its buyers be residents of another State. This was a sale of colored coffee. See a like holding in Boston Dairy Co. v. J. H. Jones Corporation (N. Y.), 129 N. Y. Supp. 70.

PURE FOOD-53.

APPENDICES

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