3PLR – WINTERBOTTOM V. ALLWOOD.

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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WINTERBOTTOM

V.

ALLWOOD.

KING’S BENCH DIVISION

1914 NOV. 19.

3PLR/1914/4 (KB.D-E) 

CITATION

[1914] KBD 608

BEFORE THEIR LORDSHIPS:

RIDLEY J., AVORY J., AND LUSH J.

 

REPRESENTATION

Maddocks, for the appellant.

1. M. MontgomeryK.C. , for the respondent, was not called upon.

Solicitors for appellant: T. D. Jones & Co., for J. & L. Clark, Smethwick.

Solicitors for respondent: Sharpe, Pritchard & Co., for H. Brevitt, Wolverhampton.

 

MAIN ISSUES

COMMERCIAL LAW – REGULATORY COMPLIANCE – SALE OF GOODS:- Adulterated goods-Sale to the prejudice of purchaser – Analysis of goods to determine same – Statutory requirement as to sealing – whether condition precedent – How treated under Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), ss. 6, 14.

FOOD AND AGRICULTURE LAW:- Sale of packaged industrial food – Statutory requirement as to standards of production and packaging – Breach of same – Effect

INTELLECTUAL PROPERTY LAW – PRODUCT LIABILITY:- Adulterated goods-Sale to the prejudice of purchaser – Analysis of goods to determine same – Statutory requirement as to sealing – Whether condition precedent – Effect of breach – How treated under Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), ss. 6, 14.

 

 

 

HISTORY AND SUMMARY

By s. 14 of the Sale of Food and Drugs Act, 1875, “the person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed …. offer to divide the article into three parts …. each part to be …. sealed or fastened up in such manner as its nature will permit ….”

On February 12, 1914, the respondent purchased from the appellant some tins of “sardines in olive oil.” The appellant delivered to the respondent tins of sardines which in fact contained cottonseed oil instead of olive oil. The respondent opened the tins, and having put the contents into three jars which he covered with grease-proof paper and securely sealed, delivered one of the jars to the appellant. On the same day the respondent caused the contents of one of the jars to be analysed by the public analyst. There was no negligence in the sealing of the jars on the part of the respondent, and about a fortnight after the purchase of the sardines information was conveyed to the appellant as to the result of the analysis and as to the probability of legal proceedings being instituted against him.

 

The respondent subsequently laid an information against the appellant under s. 6 of the Act for selling to the prejudice of the purchaser a certain article of food, namely, the sardines in olive oil, which was not of the nature and quality of the article demanded, and on March 11 a summons in respect of the charge was served upon the appellant. The appellant did not send for analysis the jar delivered to him by the respondent until March 17, 1914, when owing to the condition of its contents they could not be analysed, and it was admitted that they were not capable of being analysed on March 11, the date of service of the summons:-

Held, that it was not necessary under s. 14 of the Act that the jar should be so sealed or fastened up that it would be capable of analysis at the time the summons was served on the appellant, and that as he had had a reasonable opportunity, if he so desired, of having the sample effectively analysed in order to check the analysis made by the public analyst, the prosecution would lie.
CASE stated by the stipendiary magistrate for South Staffordshire.

1. On March 9, 1914, an information was laid under s. 6 of the Sale of Food and Drugs Act, 1875 [FN1], by the respondent Allwood, an inspector under the Act for the borough of Wolverhampton, against the appellant for that “he, the appellant, on the 12th day of February, 1914, at 87, Cannock Road, Wolverhampton, in the county aforesaid, did sell to the respondent to the prejudice of the purchaser a certain article of food, to wit, sardines in olive oil, which was not of the nature, substance, and quality of the article demanded by the respondent, the purchaser thereof, the same containing 19 per cent. of cottonseed oil, the oil used being cottonseed oil instead of olive oil.”FN1 Sale of Food and Drugs Act, 1875 (38 & 39 Vict. c. 63), s. 3: “No person shall mix … or order or permit any other person to mix … any article of food with any ingredient or material so as to render the article injurious to health, with intent that the same may be sold in that state, and no person shall sell any such article so mixed … under” a penalty. Sect. 6: “No person shall sell to the prejudice of the purchaser any article of food or any drug which is not of the nature, substance, and quality of the article demanded by such purchaser, under a penalty … provided that an offence shall not be deemed to be committed under this section in the following cases; that is to say, “(1.) Where any matter or ingredient not injurious to health has been added to the food or drug because the same is required for the production or preparation thereof as an article of commerce, in a state fit for carriage or consumption, and not fraudulently to increase the bulk, weight, or measure of the food or drug, or conceal the inferior quality thereof;” Sect. 14: “The person purchasing any article with the intention of submitting the same to analysis shall, after the purchase shall have been completed, forthwith notify to the seller or his agent selling the article his intention to have the same analysed by the public analyst, and shall offer to divide the article into three parts to be then and there separated, and each part to be marked and sealed or fastened up in such manner as its nature will permit, and shall, if required to do so, proceed accordingly, and shall deliver one of the parts to the seller or his agent.” Sect. 21: “At the hearing of the information in such proceeding the production of the certificate of the analyst shall be sufficient evidence of the facts therein stated, unless the defendant shall require that the analyst shall be called as a witness, and the parts of the articles retained by the person who purchased the article shall be produced ….”
2. The information was first heard by the magistrate on April 1, 1914, and was adjourned until May 15, 1914, at the request of the appellant and by the direction of the magistrate for the purpose of obtaining an analysis from the chemical officers of the Commissioners of Inland Revenue.
3. On May 15, 1914, on the adjourned hearing of the information the magistrate adjudged that the appellant was guilty of the offence and ordered him to pay a fine of 1l. and 4l. 5s. 6d. costs of the prosecution.
4. Upon the hearing of the information the following facts were proved:–

(a)     On February 12, 1914, the respondent purchased from the appellant nine tins of sardines [FN2] of the brand known as “Five o’clock Tea Brand” for the sum of 2s. 3d. On each of the tins there was a printed label wherein it was stated that the tins contained sardines in pure olive oil, the printed statement on the label being seen and read by both appellant and respondent before the purchase was made. The label was in the following words:–

“Five o’clock Norwegian Sardines in pure olive oil Packed in Norway.”

FN2 During the argument it was admitted by counsel for the appellant that the respondent asked for “sardines in olive oil.”

 

(b)     The respondent on the same date, after the purchase had been completed, notified the appellant of his intention to have the contents of the tins analysed, and opened them and divided the contents (both sardines and oil) of each separate tin into three parts and placed one of the parts from each tin into three jars and covered the tops of the jars with grease-proof paper and securely sealed the same and delivered one of the jars to the appellant.

(c)     The respondent on the same day caused the contents of one of the jars to be analysed by the public analyst for the borough of Wolverhampton, who on February 26, 1914, delivered to the respondent a certificate which (so far as material) was as follows:–

“I the undersigned public analyst for the borough of Wolverhampton do hereby certify that I received on the 12th February, 1914, from Mr. G. F. Allwood a sample of ‘sardines in olive oil’ … for analysis and have analysed the same and declare the result of my analysis to be as follows:–

“I am of opinion that the said sample contained the*611 percentage of foreign ingredient as under:–19 per cent. cottonseed oil, the oil used being cottonseed oil instead of olive oil.

“No change had taken place place in the constitution of the sample that would interfere with the analysis.

“E. W. T. Jones, F.I.C.”

(d)     The appellant caused the contents of the second of the jars to be analysed by William T. Rigby and Harry Silvester on March 17, 1914, but owing to the condition of the contents they were not able to make an analysis.

(e)     The third of the jars was at the request of the appellant and by the direction of the magistrate sent on April 1, 1914, to the Commissioners of Inland Revenue for the purpose of analysis and was received by the chemical officers of the department on April 2, 1914, and the certificate given by them, dated April 27, 1914, was (so far as material) as follows:–

“The sample of sardines … referred to in your letter of April 1st was received here on the following day. It was securely sealed.

“On opening the jar we found that the sardines were covered with mould growths and that no oil could be poured or drained away from the sardines.

“After removal of the mouldy portion of the sample the fish were treated with a solvent which extracted the oil natural to the fish together with any oil which the fish had absorbed.

“We have made an analysis of the extracted oil but we are unable to say from the results obtained whether cottonseed oil was or was not present in the sample.”

(f)      By reason of the fact that the sardines which were placed in the jars having from decomposition or other causes become dry and mouldy, and that no oil could be poured or drained away from the sardines, it was not possible either for the analysts consulted by the appellant or for the chemical officers of the Commissioners of Inland Revenue to make any effective analysis of the contents of the jars on the dates when the same were received by them respectively.

[FN3]    It was admitted that at the date of the service of the summons upon the appellant the contents of the jars were in such a condition as not to be capable of analysis.

(g)     The use of oil is required in the preparation of tinned sardines as an article of commerce in a state fit for carriage and consumption, and there was no evidence that cottonseed oil if so used is injurious to health.

5. On behalf of the appellant it was contended:

(a)     That there was no evidence of any sale to the prejudice of the purchaser within the meaning of s. 6 of the Sale of Food and Drugs Act, 1875.

(b)     That the respondent had failed to comply with the provisions of s. 14 of the Sale of Food and Drugs Act, 1875, in that the contents of the tins had not been separated and fastened in such a manner as the nature of the case permitted, the contents of the tins not having been placed in the jars in such a manner as to admit of the oil being analysed at the date of the service of the summons or on the date when the information was first heard, namely, April 1, 1914, and that compliance with the provisions of s. 14 was a condition precedent to the prosecution of the proceedings. [FN4]

FN4 It was also contended before the magistrate on behalf of the appellant that as the sardines had not been separated from the oil they were incapable of separate analysis.

6. On behalf of the respondent it was contended (inter alia):

(a)     That the article supplied was not of the nature, substance, and quality of the article demanded.

(b)     That cottonseed oil is an inferior oil to olive oil.

(e)     That the part delivered to the appellant and the part retained for future comparison each contained relatively the same quantities of fish and oil as the part submitted for analysis to the public analyst, and that each of those parts was marked and sealed and fastened up in such manner as its nature would permit.

(f)      That the part delivered to the appellant on February 12, 1914, was of such a nature both as regards fish and oil as to have enabled him to procure an effective analysis, if he had taken the necessary steps at the time to have done so, inasmuch as information was conveyed to him at about a fortnight from the date of the purchase as to the result of the analysis of the public analyst and of the probability of legal proceedings being instituted,*613 and he ought then to have taken steps to have his part analysed instead of waiting until after the service of the summons.

(g)     That it was common knowledge that sardines in tins rapidly decompose after a tin has once been opened.

(h)     That the prosecution could not be held responsible for any alteration, by way of decomposition or otherwise, which had taken place in the constituent parts of the article between the time when it was purchased and the time when the appellant’s part was submitted for analysis to his analysts.

(i)      That Lowery v. Hallard [FN5], relied upon by the appellant’s solicitor, was not in point, and that that case dealt with the proper primary division of the article purchased into what should be three approximately equal portions.

FN5 [1906] 1 K. B. 398.

(j)      That the objection raised by the appellant’s solicitor regarding the division and subsequent condition of the appellant’s part had been definitely settled by Suckling v. Parker [FN6] and that the circumstances in the present proceedings were analogous to those which arose in that case.

FN6 [1906] 1 K. B. 527.

(k)     That it is not a condition precedent to a conviction that the portion delivered to the appellant and also the portion retained for future comparison should be in such a condition as to be capable of an effective analysis at a date some weeks after the purchase of the sample, and that the Sale of Food and Drugs Acts nowhere state that to be the case.

(l)      That no negligence or want of care was proved on the part of the respondent in taking the necessary steps under the Sale of Food and Drugs Acts.

7. The magistrate was of opinion that on the facts he was entitled to find that the opinion expressed in the certificate of E. W. T. Jones, the public analyst for the borough of Wolverhampton, that the contents of the tins contained a large percentage of cottonseed oil was correct, and that the sale of the tinned sardines in the circumstances was a sale to the prejudice of the purchaser within the meaning of s. 6 of the Sale of Food and Drugs Act, 1875, and that it was not a condition precedent to proceedings under the section that the contents of the tins should be so dealt with by the respondent as to admit of an effective analysis being*614 obtained on behalf of the appellant at the date of the service of the summons or by the chemical officers of the Commissioners of Inland Revenue pursuant to the provisions of s. 21 of the Sale of Food and Drugs Act, 1899.
8. The magistrate was further of opinion that in accordance with the decision in Suckling v. Parker [FN7] it was not necessary (as a condition precedent to a conviction) that after the period which had elapsed between the date of the purchase of the article (about five or six weeks) and the dates upon which one part was sent to the chemical officers and another part was submitted for analysis to the appellant’s analysts those parts should then be in such a condition as to be capable of effective analysis, and that he was empowered to decide the case acting upon the certificate of the public analyst, Mr. Jones, and as in his (the magistrate’s) opinion the article sold by the appellant was not sardines in olive oil, he convicted the appellant of the offence charged and fined him 20s. and 4l. 5s. 6d. costs.

FN7 [1906] 1 K. B. 527.

The question for the opinion of the Court was whether the magistrate came to a correct determination in point of law.

 

Maddocks, for the appellant.

There was no evidence of a sale to the prejudice of the purchaser within the meaning of s. 6 of the Sale of Food and Drugs Act, 1875, because the purchaser asked for tinned sardines and obtained tinned sardines. [After some further discussion he admitted that the purchaser must be taken to have asked for “sardines in olive oil.”] But even admitting that the purchaser asked for “sardines in olive oil” the appellant committed no offence against the statute. The magistrate overlooked the proviso in s. 6 that no offence is committed where any matter not injurious to health is added because it is required for the preparation of the food as an article of commerce in a fit state for carriage or consumption.

 

The magistrate found that there was no evidence that the cottonseed oil was injurious to health. No offence is committed if the ingredient added is not the same as that on the label if it is not injurious to health. If an ingredient injurious to health is added, a remedy is provided by s. 3 of the Act of 1875.

 

The jars which were delivered to the appellant and sent to the Commissioners of Inland Revenue were not sealed up in such a manner as their nature would permit within the meaning of s. 14 of the Act of 1875. The sealing ought to have permitted of an analysis being made on behalf of the appellant. In sealing the jars care ought to have been taken that the air was kept out. That neglect rendered it impossible for the appellant to produce evidence from his analysts.

 

It is admitted that at the date of the service of the summons the samples were not capable of analysis. The words “olive oil” are in the expression “sardines in olive oil” descriptive only of the manner in which the sardines may be prepared, and not of an article of food. The respondent did not buy the olive oil as an article of food and for the purpose of analysis. If he did, it was his duty to inform the appellant and to separate the oil so that it could be analysed. If he intended to take proceedings in respect of the oil as well as in respect of the sardines he ought to have separated the sardines from the oil.

 

The words “sealed or fastened up in such manner as its nature will permit” in s. 14 of the Act of 1875 mean that each part into which the article is divided shall be sealed or fastened up so far as its nature will permit for the purpose of analysis. Applying those words to the present case it follows that the jar ought to have been sealed up so far as it reasonably could be for the purpose of analysis. Whether it ought to have been hermetically sealed or not would be a question for the magistrate, who would decide whether it was reasonable that it should be so sealed. The question for the magistrate is whether the sealing is sufficient to preserve the article for the purpose of analysis by the vendor: Suckling v. Parker [FN8]; Lowery v. Hallard. [FN9] The sample must be so sealed as to give the vendor a reasonable time for analysis, and the sealing in that manner must take place at the time the sample is taken. The question for the magistrate is whether the sealing is reasonably effective for the purpose for which the sample is being kept, and the sample must be in a condition to be analysed at the date of the service of the summons.

FN8 [1906] 1 K. B. 527.

FN9 [1906] 1 K. B. 398.

 

 

RIDLEY J.

In this case Mr. Maddocks has placed his argument before us on behalf of the appellant with ability and fairness and has taken two points on his behalf– (1.) that there was no evidence of a sale to the prejudice of the purchaser within the meaning of s. 6 of the Sale of Food and Drugs Act, 1875, and (2.) that the sample delivered to him and that sent to the Commissioners of Inland Revenue for analysis were not properly sealed and fastened up. In my judgment neither point can prevail. The respondent asked for sardines in olive oil, and there were delivered to him nine tins of sardines, with labels stating that the tins contained sardines in pure olive oil. Samples were taken in the ordinary way and were fastened up, but before the appellant exercised his option of having an analysis made the article had so decomposed that an analysis could not be made. The same thing happened with regard to the sample sent for analysis by direction of the magistrate. As to the sample which the respondent caused to be analysed, the analysis showed that it contained 19 per cent. of cottonseed oil, the oil used being cottonseed oil instead of olive oil, although the labels stated that the tins contained sardines “in pure olive oil.” It is said that there was no evidence of a sale to the prejudice of the purchaser because what he purchased was “tinned sardines,” as stated in paragraph (4) (a) of the case, and he did obtain tinned sardines, but on an examination of the facts it appears that he asked not for “tinned sardines,” but for “sardines in olive oil,” and he did not obtain sardines in olive oil.

 

[The learned judge also dealt with the contention that there were two distinct purchases of sardines and oil, which had not been seriously pressed.]

 

The other point is, perhaps, a more important one. On behalf of the appellant it has been contended that the sample delivered to him and the sample which was ultimately sent by direction of the magistrate to the Commissioners of Inland Revenue were not properly sealed or fastened up in such manner as their nature would permit. If they were not so sealed or fastened up the prosecution would fail. That is what was decided in Suckling v. Parker [FN10], where the case was remitted to the magistrate in order that he might find whether the article had been so sealed up. In the present case it is not necessary to remit the case because the findings seem to imply that the samples were properly sealed up in accordance with the Act, although they are not specifically directed to the point. The words of s. 14, “sealed or fastened up in such manner as its nature will permit,” do not mean that the article is to be so sealed up that the air cannot enter and that the article will be imperishable and capable of analysis at the time when the vendor sends for analysis the sample which has been delivered to him or at the time when the vendor is served with the summons. Those words do not refer so much to the preservation of the article as to its nature. They mean that the article whether liquid or solid is to be sealed or fastened up in such manner as its nature will permit, with the exercise of reasonable care and circumspection. I think that the magistrate has found that this article was so dealt with. Paragraph 6 (l) of the case states that it was contended for the respondent that it was not proved that there was any negligence or want of care on his part in taking the necessary steps under the Sale of Food and Drugs Acts, and I think that it is a necessary part of the findings of the magistrate which are stated in paragraphs 7 and 8 that there was no negligence on the part of the respondent, and that the article had been properly sealed or fastened up, otherwise I do not see how he could have arrived at the decision there set out. The appeal must therefore be dismissed.

FN10 [1906] 1 K. B. 527.

 

AVORY J.

I am of the same opinion. I think it is important to make it clear that we are deciding this case upon the admissions of fact which were made during the course of the argument and upon our view of the findings of fact which are necessarily involved in the decision of the magistrate. On the first point taken for the appellant, that there was in this case no evidence of a sale to the prejudice of the purchaser because he asked for tinned sardines and did in fact get tinned sardines, it is now clear that the case has to be read with this amendment of paragraph 4 (a), namely, “On February 12, 1914, the respondent asked the appellant for sardines in olive oil and was supplied with sardines in cottonseed oil.” As soon as that admission was made, it was clear that there was a sale to the prejudice of the purchaser.

 

As to the second point taken on behalf of the appellant, namely, that each part of the substance purchased was not sealed or fastened up in such manner as to enable an analysis to be made as required by s. 14, it is necessary to make it clear that all that the Court is deciding is the question which was before the magistrate, namely, whether it is necessary under s. 14 that each part should be so sealed or fastened up that it will be capable of analysis at the time when the summons is served on the vendor. I take that to have been the real question before the magistrate for this reason: In paragraph 5 (b) of the case it is stated that the appellant contended that the respondent had failed to comply with the provisions of s. 14, in that the contents of the tins had not been separated and fastened in such a manner as the nature of the case permitted, the contents of the tins not having been placed in the jars in such a manner as to admit of the oil being analysed at the date of the service of the summons. The magistrate, dealing with that contention, has expressed his opinion in paragraph 7 that it was not a condition precedent to proceedings under s. 6 that the contents of the tins should be so dealt with by the respondent as to admit of an effective analysis being obtained on behalf of the appellant at the date of the service of the summons. In my opinion the magistrate was right in that view and properly determined that question. It appears to me that we must take the evidence in this case to have satisfied the magistrate, as appears from paragraph 6 (f), that information was in fact conveyed to the appellant about a fortnight after the date of the purchase as to the result of the analysis by the public analyst and as to the probability of legal proceedings being instituted. We must also take it that the magistrate was satisfied that there was no negligence or want of care on the part of the respondent in taking the necessary steps*619 under the Act, and therefore the appellant had an opportunity if he so desired, within a reasonable time after the purchase, of checking the analysis of the public analyst by having one made on his own behalf. I am not myself prepared to decide whether s. 14 does contemplate that the samples shall be so sealed or fastened up as to prevent any possibility of deterioration in the article. From the case of Lowery v. Hallard [FN11] it appears that the object of the section is that the vendor shall have an opportunity of having an effective analysis made. It is true that in that case the decision only proceeded upon the question of quantity, and the Court said that a sufficient quantity ought to be left with the vendor to enable him to have an effective analysis made in order to check the analysis made by the public analyst. The Court there did not deal with the question whether the article should be so sealed or fastened up that it would not deteriorate. But by analogy the object of the section being to give the vendor the opportunity of having the sample effectively analysed, if in this case I thought that upon the facts found it was not clear that the appellant had such an opportunity, I should be of opinion that the case ought to go back to the magistrate in order that he might determine whether a reasonable opportunity had been afforded to the appellant of having an analysis made. Having, however, come to the conclusion that there was evidence which satisfied the magistrate that the appellant had that opportunity, there is no reason for sending the case back, and I think that the second point also fails.

FN11 [1906] 1 K. B. 398.

 

LUSH J.

I agree. I only wish to say that as to the second point it is clearly a condition precedent to a prosecution under s. 6 that the purchaser should have taken the steps required by s. 14. The question is what those steps are. The section is silent as to the manner in which the duty of sealing or fastening up the portions of the article is to be performed. It may be said, so far as the language of the section is concerned, that the purchaser’s duty is so to seal or fasten up the substance that liquid shall not escape. That is putting his duty at the*620 lowest. It may also be said that his duty is so to seal or fasten it up that it will not deteriorate whatever its nature may be. That is putting it at the highest. But there is a third view, and I think it is the right one. The object of the performance of the duty is to enable the seller to have the article analysed and to enable the Court, if it thinks fit, to have the article analysed. That is shown by s. 21. Having regard to the object of the requirement and to the fact that s. 14 does not in clear terms state the method to be adopted, I think that the proper view is that the purchaser is to take reasonable care to have the portions so sealed or fastened up as to be capable of analysis at the proper time. That is, in effect, what the Court decided in Lowery v. Hallard [FN12] as regards quantity, and in that case Lord Alverstone C.J. said: “It is … most important that there should be a proper opportunity of checking or correcting any analysis made by the public analyst.” Just as it is necessary to see that a sufficient quantity is retained and is sealed or fastened up, so it is necessary to see that the way in which the sealing or fastening takes place shall be reasonably sufficient to allow of subsequent analysis by an analyst employed on behalf of the seller and by the public analyst. My difficulty has been as to whether the magistrate has dealt with this point and has found that the respondent has discharged the duty which I think was imposed upon him by the section. But, on consideration, I think that the magistrate must be taken to have so found. He has negatived the duty of the highest degree, namely, so to seal or fasten up the article as to ensure that at any time thereafter an analysis can be made. He says that that is not a condition precedent to the proceedings. He has not in terms found that the method employed was reasonably adequate and that reasonable care was taken, but I think that that apparent omission is supplied by the statement that the respondent contended that it was not proved that there was any negligence or want of care on his part. The magistrate’s finding in paragraph 7 appears to mean that he found as a fact that there was no negligence on the part of the respondent and that the article was reasonably sealed or fastened up. He was therefore right in his view as to the meaning of the section and was clearly right on the facts in holding that the appellant committed the offence charged.

FN12 [1906] 1 K. B. 398.

 

Appeal dismissed. (J. E. A. )
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