I concur in the result reached by the presiding justice, but am of the opinion that if the milk product was made and sold in violation of the Agricultural Law, no recovery can be had for the purchase price thereof. I think, however, it was not so made or sold. Section 37 of the Agricultural Law (Consol. Laws, chap. 1; Laws of 1909, chap. 9), which it is contended was violated, reads as follows: “No condensed milk shall be made or offered or exposed for sale or exchange unless manufactured from pure, clean, healthy, fresh, unadulterated and wholesome milk from' which the cream has not been removed either wholly or in part, or unless the proportion of milk solids shall be in quantity the equivalent of twelve per centum of milk solids in crude milk, and of which solids twenty-five per centum shall be fats. No person shall manufacture, sell or offer for sale or exchange in hermetically sealed cans, any condensed milk unless put up in packages upon which shall- be dis*627tinetly labeled or stamped the name of the persons or corporation by whom made and the brand by which or under which it is made. When condensed milk shall be sold from cans or packages not hermetically sealed, the vendor shall brand or label such cans or packages "rith the name of the manufacturer of the milk contained therein.”
Condensed milk is a well-known milk product. The statute prescribes that this product, “condensed milk,” shall not be made, offered or exposed for sale or exchange unless manufactured from milk of a prescribed quality and condition. But, as it seems to me, the making and selling of a condensed mixture of whole and skimmed milk are not prohibited, if made and exposed for sale, not as “ condensed milk,” but for what it is, as was done in this case.
This statute should receive a reasonable and not a strict interpretation. It certainly cannot be that the Legislature intended to prohibit absolutely the making of a condensed mixture of whole and. skimmed milk. Ror do I think the manufacture or sale of such an article as food is forbidden, if put on the market for what it actually is, and not as condensed milk. Pure skimmed milk, either alone or mixed with whole milk, is not unwholesome, nor is it claimed to be.
The product was made by the plaintiff for the defendant precisely as the defendant ordered it to be made. There is no claim of misbranding or deception in its manufacture or sale.
As regards the plaintiff, I think there was not a making or offering or exposing for sale of condensed milk within the meaning of the Agricultural Law. Whether the defendant so put the article on the market and sold it as to violate the provisions of the statute, we do not know. If it did, that affords no good reason for closing the courts against the plaintiff, who did not, and preventing the plaintiff from recovering of the defendant the purchase price of an article made as defendant directed, sold for what it'is and not put on the market by plaintiff so as to mislead or deceive either the defendant or the public in buying or consuming it.
Robson, J., concurred.