Opinion
March 7, 1906.
Julius M. Mayer, Attorney-General, and Joseph S. Rosalsky, Deputy Attorney-General, for the appellant.
Clark L. Jordan, for the respondent.
There were clearly questions of fact presented for determination by the jury, and these were whether the defendant manufactured for sale, sold and exposed for sale, to quote from the statute, "any compound or mixture branded or labeled as and for honey which shall be made up of honey mixed with any other substance or ingredient." (§ 80b, supra.) The only charge in the complaint is for manufacturing and selling and exposing for sale a compound or mixture for pure honey which was mixed with other syrup or ingredients and adulterated contrary to the provisions of the law. There is no charge in the complaint that the label did not conform with the law requiring, in case of honey mixed with any other ingredient, that there shall be printed on the package containing such compound a statement giving the ingredients of which it is made, stating that honey is one of the ingredients, "in the same size type as are the other ingredients." The charge in that respect simply is that the packages were not "labeled with a statement giving ingredients of which it was made." The principal question litigated on the trial appears to have been whether the label conformed with the statute. That, however, was not within the issues framed by the pleadings.
On the only questions that were within the issues, viz., As to whether or not the compound was manufactured for sale, sold and exposed for sale by the defendant for "pure honey" instead of as a compound or mixture, the evidence was sufficient to require the court to take the verdict of the jury. Upon those questions the label used was material evidence, as it was made up with the word "honey" in large full face type and the word "compound" in smaller and lighter faced type, and with the ingredients, viz., "Honey-Syrup" stated in still smaller type. The jury might have inferred from this that the defendant intended to deceive a purchaser into the belief that he was buying honey and not a compound. The court having declined to submit the questions of fact to the jury and having held as a matter of law that there had been a violation of the statute, the verdict directed in favor of the plaintiff was properly set aside. The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with costs.