Commonwealth v. Byrnes

• Decision Date: 28 February 1893
• Citation: 33 N.E. 343,158 Mass. 172
• Parties: COMMONWEALTH v. BYRNES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

158 Mass. 172

33 N.E. 343

COMMONWEALTH v. BYRNES.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1893

The further facts fully appear from the report This complaint was brought in the municipal court of the Roxbury district of Boston, under chapter 58, § 1, of the Laws of 1891, charging defendant with exposing olemargarine for sale in imitation of butter. At the trial in the superior court the case was submitted to the jury on an agreed statement of facts, as follows: "(1) Defendant is the owner and keeper of a provision store on Washington street in Boston, in which there was a refrigerator containing oleomargarine, which could not be seen, because the refrigerator was a closed and covered one. (2) On the 24th day of August, 1892, Dennis J. Quinn, an agent of the inspector of milk of the city of Boston, called at said store, and at that time asked defendant for a pound of oleomargarine. Defendant declined to sell to Quinn, but said he would take his order and deliver the oleomargarine at his house. (3) Quinn thereupon left the store, and later came back to store, and saw the agent of defendant, and again asked for a pound of oleomargarine, and was told by said agent that he would not sell. (4) Thereupon said Quinn acting as an agent of the inspector of milk of the city of Boston, demanded a sample of oleomargarine for inspection. The agent of defendant declined to give Quinn a sample as requested, whereupon Quinn went to the refrigerator, opened it, and took therefrom a sample of oleomargarine, which was colored to imitate yellow butter, which is the oleomargarine in question. That there was a sign in the store to the effect that oleomargarine was sold there."

COUNSEL

C.N Harris, Second Asst. Atty. Gen., for the Commonwealth.

Henry M. Ayars, for defendant.

OPINION

BARKER J.

The defendant had for sale in his provision store oleomargarine colored in imitation of yellow butter. It was in a closed and covered refrigerator, and could not be seen by customers, but there was in the store a sign to the effect that oleomargarine was sold there. Upon the occasion to which the complaint relates, none of the substance was sold or produced to view, except that a sample was taken from the refrigerator by an agent of an official inspector. The case turns upon the meaning of the words "expose for sale," in the statute ^[1] under which the complaint was drawn. The purpose of the statute is to prevent deception in the manufacture and sale of imitation butter, and the statute provides that no person "shall render or manufacture sell, offer for sale expose for sale, or have in his possession with intent to sell," certain articles. The phrase to be construed is perhaps susceptible of more than one meaning. Whenever goods are placed for convenient delivery upon expected sales they are put out, and in one sense exposed for sale, whether visible to customers or not. But, in our opinion, the words are not so used in the statute under consideration. The prohibited articles are designed and adapted to deceive the eye, and, because their appearance is likely to induce those who see them to buy them as the genuine butter of which they are in imitation, there is special reason for prohibiting their exposure to view. The language is so full that it is not necessary to give it a strained...