B. F. Beard & Co. v. Goodman

Opinion or the court by

JUDGE PAYNTER

Revebsing.

The appellants are merchants, and they sold the appellee fertilizer of the agreed value of $338.75. One defense to the action is that it was sold to him in violation of the statute, because none of the bags or packages containing the fertilizer had attached to them any label furnished by the Kentucky Agricultural Experiment Station, giving a chemical analysis of the fertilizer, and that 'for that reason the contract is not enforceable. The facts are these: The appellants did not keep the fertilizer in stock, and informed appellee that it would be shipped to him at his station by Swift & Co., of Illinois. It was shipped by Swift & Co., and reached appellee’s station on the 26th of September, and two or three days thereafter, and without the knowledge of appellants, the appellee unloaded it. The bags containing the fertilizer did not have any labels attached to them, showing the chemical analysis; and appellants did not know of this fact until informed by appellee, whereupon they telegraphed to Swift & Co., for the character of labels required by the statute. The labels were sent promptly, and were delivered by appellants to the appellee, who expressed himself satisfied therewith. The appellee kept and used the fertilizer.

The question is, was this such a compliance with the statute as will enable the plaintiff’s to recover the agreed value of the fertilizer? The statute requires that every bag of commercial fertilizer sold or offered for sale in this State shall, have attached to it, in a conspicuous place, a label, which shall contain the name and address of the manufacturer, the name of the fertilizer, number of net pounds in each package, etc. A penalty is provided against the manufacturer or vendor who shall sell, offer, or dispose for sale, any fertilizer, without having the labels required by statute on the packages. This court, in Vanmeter v. Spurrier, etc., 94 Ky., 22, 14 R., 684, 21 S. W., 337, held that one who violated the statute, in not furnishing the labels as required by it, could not recover the value of the fertilizer sold. In that case the labels were never furnished. In the case at bar the labels were furnished, but were not on the packages when they arrived at the appellee’s station, and in fact were never placed upon the packages by the appellants. The appellee received the bags of fertilizer and the labels. He received just what the law contemplated he should have— the fertilizer which he bought, and the labels giving the information required by the statute. Reduced to the last analysis, the appellee seeks to evade the payment of the contract price of the fertilizer, not because the labels were not furnished him, but because they were not on the bags when they arrived in the car. The labels received gave the appellee the information for his protection which the statute contemplated purchasers- of fertilizers should have. If the fertilizer was not of the character represented, a cause of action would exist, and the labels furnished would show the character of fertilizer which the vendor represented he was selling. The purpose of the statute was to prevent the manufacturers and vendors from perpetrating frauds on purchasers, not to enable such purchasers to escape liability for fertilizer sold and delivered to them. While the statute was not complied with to the letter, it was in the spirit. We are therefore of the opinion that the defense relied on to which we have referred is not available. The court erred in giving a peremptory instruction to find for the appellee.

The judgment is reversed for proceedings -consistent with this opinion.

Judge Hobson, dissenting.