The only question is whether the sale was in violation of E. L. c. 75, §§ 16-18. These sections so far as material read as follows: § 16: “No person shall . . . sell, within this Commonwealth, any . . . article of food which is adulterated within the meaning of section eighteen.” § 17. “The term ‘food’ as used . . . [in §§ 16-27, inclusive] shall include all articles, simple, mixed or compound, used in food or drink by man.” § 18. “Food shall be deemed to be adulterated: 1. If any substance has been mixed with it so as to reduce, depreciate or injuriously affect its quality, strength or purity. 2. If an inferior or cheaper substance has been substituted for it wholly or in part. ... 4. If it is in imitation of or is sold under the name of another article. . . . The provisions of this and the two preceding sections relative to food shall not apply to mixtures or compounds not injurious to health and which are recognized as ordinary articles or ingredients of articles of food, if every package sold or offered for sale is distinctly labelled as a mixture or compound with the name and per cent of each ingredient therein.”
*479Was the sale in violation of this statute? The judge has found that the article called for by the contract was “ blended sugar, part maple and part granulated,” and that “ the sugar was made and delivered in a manner which was a substantial performance of the contract.” In other words the defendant ordered a mixture of maple and granulated sugar and the plaintiffs sent what was ordered. But none of the boxes in which the sugar was contained was “ labelled as a mixture or compound with the name and per cent of each ingredient therein; ” and therein, says the defendant, lies the illegality of the sale.
There is no doubt that maple sugar and granulated sugar are each a distinct article of food within the meaning of the statute, and so different that a contract for the sale of one would not be satisfied by a delivery of the other, much less by the delivery of a mixture of both. The contract in question called for neither kind of sugar in its pure state, but for a mixture; and this mixture did not bear the simple name of either kind even as between the parties. As stated by the judge, “ the subject matter of the contract was a mixture of two kinds of sugar.” And the commercial unit or article stipulated for was not either kind of sugar distinct from the other, but the mixture composed of both. Many an article composed of two or more ingredients is sold in the market as a unit food. A mince pie is generally understood to be a mixture of ingredients each of which may be regarded either as a distinct article of food or of drink, but no one would suppose the statute applicable to the sale of such a pie. The purchaser of the pie is not thinking of each particular ingredient, but only of the pie. To him not each individual ingredient but the mixture, the pie as a whole, is the unit, the one article of food. So in the present case the unit contracted for was the blended sugar, itselfa well known article in the trade.” We think that under the circumstances disclosed by this case the ruling, that “ the sale ... as between the parties was not a sale of adulterated food or an imitation within the provisions of” the statute, was correct.
It may be urged that the object of the statute is to prevent fraud upon the public, as it doubtless is, and that the defendant may have sold these packages to some one as pure maple sugar, and that the failure of the plaintiffs to mark them, although *480such failure was at the request of the defendant, contributed to the deception of such purchasers. Upon this part of the case the judge found that a part of the sugar was in fact resold by the defendant to other persons, but he further found that even if these sales were in any respect unlawful the plaintiffs did not participate in them; that the plaintiffs were wholly indifferent as to the use which the defendant might make of the sugar and had no knowledge of any intention on the part of the defendant to resell in violation of the law, if such intention in fact existed. Under these findings the subsequent transaction of the defendant, or its intention, would not prevent a recovery by the plaintiffs. Graves v. Johnson, 179 Mass. 53, and cases cited.
The case is simply a sale of an article of food, a mixture it is true of two other simple articles of food, but having a distinct name of its own and being known to the trade as a commercial unit of food and sold and bought as such. The sale of such an article under the circumstances disclosed by this case is not a sale of adulterated food or an imitation within the meaning of the statute.
Exceptions overruled.