These two cases, argued together and known as Nos. “ 1 ” and “ 2,” present a very unusual situation.
Action No. 1 was commenced to recover the sum of $2,011.02, the lue of goods sold and delivered by the plaintiff to the defendant, action No. "2 was brought to recover on a promissory note for $855.25, which was given for goods sold and delivered by the plaintiff to the defendant. The answer to each of such causes of action interposed by the defendant, and which has been held to be a good defense, is that the promise to pay for the goods delivered and the note given for the purchase price of part of such goods were all in violation of section 37 of the Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9). In other words, that the goods sold and delivered to the defendant were of such character that it, the plaintiff, could not sell or deliver them and create any obligation as against the purchaser, the defendant, upon such sale and delivery.
There is no question of fact presented by this appeal.
The defendant knew and was specifically informed as to the contents of the product which it was purchasing from the plaintiff. It knew that it was “ half and half,” which meant in the trade and was understood by everybody that it was to be made from one-half skimmed milk and one-half whole milk. There is no pretense in this case that the defendant did not know exactly the character of the condensed milk which it was receiving from the plaintiff under its contract. There was no fraud or mistake by either party. In other words, the defendant, with full knowledge of all the facts, received exactly the product it contracted for, to wit, “ half and half,” meaning one-half skimmed milk and one-half whole milk. Neither is there any pretense or suggestion that the defendant did not sell the product to its customers and receive in return all that it contracted for.
Regardless of the provisions of the Agricultural Law, to which attention has been called, we think it is not competent for a vendee to receive from his vendor certain property and thereafter sell such property at the market price, and then in an action brought to recover the contract price-say, “I will not pay the vendor,” especially when no damage has resulted to the vendee from such sale.
*626But in this case we think the Legislature was entirely without power to declare that skimmed milk should not be a part of condensed milk with certain proportions of whole milk. There is no suggestion that there is anything unwholesome about skimmed milk, and if it is sold as such, it seems to me no one ought to complain.
In the case at bar there is no suggestion that as between selle and buyer there was any misrepresentation or mistake. • The buyer knew exactly that the proportion of skimmed milk and whole milk which was put into the product was “ half and half.” If the buyer sold such product under a false label, of course it was within the condemnation of the statute.
The defendant in this case, it seems to me, had no excuse for not keeping its obligation to pay for the product which it received and which it, in turn, according to the uncontradicted evidence, had sold to its customers at the market value.
It follows, therefore, that the judgments appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.
Kruse and Robson, JJ., concurred in result in separate memorandum by Kruse, J.; Spring and Williams, JJ., dissented, in an opinion by Spring, J.