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59
its cream (pursuant to contract). Signed Audinwood. To E. Sadler,
Wanstead Park." The words "To E. R. Warth, Oak Farm Dairy,''
originally appeared after the signature Audinwood, but had been
struck out and "To E. Sadler, Wanstead Park, substituted." The
appellant contended that delivery of the four churns of milk to the
respondent took place at the time when they were removed from the
train at Wanstead Park Station. Upon these facts the magistrate
held that the four churns of milk were delivered to the respondent at
the time when they were placed in the respondent's van, and not at
the time when they were removed from the train at Wanstead Park,
and that the respondent had purchased the milk as the same in nature,
substance and quality as that demanded of her, with a written
warranty to that effect, and that she had no reason to believe at the
time when she sold the milk that it was otherwise than of the same
nature, substance, and quality as that demanded of her, and that she
sold it in the same state as when she purchased it. and that the agreement
or warranty and labels or invoices constituted such a written
warranty as is required by section 25 of the Sale of Food and Drugs
Act, 1875 (38 & 39 Vict. c. 63), and the magistrate accordingly
dismissed the summons. The question for the opinion of the Court was
whether on the above facts he came to a correct decision in point of
law.
Mr. Danckwerts, K.C. (Mr. H. M. Sturges with him), for the
appellant, said that by section 25 of the Act the respondent had to
show that she sold the milk in the same state as when she purchased it.
The true construction of the contract was that she purchased it
when it was brought to Chellaston Station, or, at all events, when it
arrived at Wanstead Park Station. There was no evidence that the
milk was not tampered with on the way between Chellaston and
Wanstead Park Stations, or after its arrival at Wanstead Park Station,
but before Burrows took it away from there. He cited "Parker v.
Alder" (1899, 1 Q.B., 20); "Lecky v. Ogilvy" (3 Com. Cas., 29);
and "Parkers. v. Schuller" (17 The Times Law Reports, 299).
Mr. Alex. Cairns (Mr. J. H. Menzies with him), for the
respondent, having referred to "Filsie v. Evington " (1892, 2 Q.B. 200)
and "Irving v. Callow Park Dairy " (87 L.T., 70), was stopped by the
Court.
The Lord Chief Justice, in giving judgment, said that he was
clearly of opinion, and there was almost authority for saying, that the
point raised by the appellant did not entitle him to succeed. His