',398
FEDERAL REPORTER.
pr6fit under the general government, he cannot for that reason be exempted from rendering the services, and performing the ordinary duties, of This is a direct and beneficent complete restoration of bur government in' all of its Integrity, and the redintegration of our people in their rights of citizenship, after the termination of the ,unhappy struggle between the sections of our common country,-a marvelous instance of the presence of apadvanced civilization,literally without parallel in. history, .satisfying the most incredulous' of the perpetuity of our liberties, and silencing the criticism of republican instituti6ns.
WILLIAMS
and others
t1. BARFIELD.
(Oirouit Oqu,rt, 8. D. GltJrgia, W; D. May 26, 1887.)
Under a state statute requiring that commercial fertilizers shall be "branded or tagged with the manufacturer's guarantied analysis, It showing the percent· ages of certain determinations specified in the statute, held that, if the analyof ingredients the fertilizer sis branded ,on the package show!! th.e is guarantie'd to contain, it need not specify other ingredients mentioned in the statute, about which there is no guaranty. ' a. SAME-TAGS. : I ' If a manufacturer's guarantied analysis is branded'on, the saoks, and it ap; pears that the fertilizer has been inspected, it does not invalidate the sale that tags showing the inspection and analysis were not appended. {Byllabu8 by theOourt.) . '
,t.
l?
K. HineS, for plaintiffs. Hill Hairia,for defendant·
.SPEER, J. This suit was..brough"t.on certain promissory notes given }>y the defendant to the plaintiffs, for a large shipment of a commercial fertilizer known as the ,GUlinO." On the tria,l .the jury rendered a verdict for the . the defendant made a motion for a new trial. The grounds;are-First, because the court charged the jury as follows: .' law requires that packages of commercial fertilizers, when offered for sale, must show the manufacturer's guarantied analysis; but this does not 'mean that the fertilizer mustoontainall the ingredients m,entioned in the stat.ute. but onlY,tliat it Illust tJ:1e percentages of the irigreclients it does contain., If, therefore, you belIeve from the evidence that the sacks of guano sold by the plaintiffs to the defendant Were branded with the manufacturer's guar'antied 'QnlllySiS, and that the fertilizer sold had been inspected, it was a compliancewith ,theJaw, and the sale is legal. If. not so branded and inspected. sale illegal, and the plaintiffs cannot r6cover." Secondly, because thecourt refused to charge the jury the following re'quest to' charg&,'tnadeby ;defendant'soounse1:
WILLIAMS '17. BARFIELD.
399
"That if the packages containing the guano did not have affixed a tag, or some evidence of inspection, at the time it was sold, then the plaintiffs cannot recover." There are other grounds of the motion; but they simply present these two grounds of exception in varying forms. The law of Georgia relating to this subject is found,in section 1553 of the Code: "Sec. i553a. All ferlilizets;orchetnica1B manufaetu1,'ing or composting the same, offered for sale or distribution in this state, shall have branded upon or attached to each bag, 'barrel, or package, in such manner as the commissioner of agriCUlture may by regulation establish, the true analysis of such fertilizer pr chemical, showing the percentage of valuable elements or ingredients the followi.ng determinations, viz.: )lolsture at 212 deg.Fah., ava.illlbJe phosphoric acid, insoluble phosphoric acid, ammonia, actual and potential, and potash K. O. Andany manufacturer, dealer, or other person. offering any'fertilizer or chemical for manufacturing the satne;for sale or distribution in this state, without having a,brand,tag, or such 'other device as the commissioner of agriCUlture ,may require, showing the alU\lysisthereof,sh!lH be gUilty of a misdeineanof, llnd on conviction ()t the same apl'11 bEl punished as prescribed in section 4310 oft'his Code. ,,' "Sec. lQ5:lb. The analysis. so· placed upon or attached to any fertilizer 'or chemicals shall be a guaranty by the manufacturer, agenti or person offering tM same,: that it contains Bil'bstantiallythe ingredients indicated thereby,: in the named therein; and'said 'guarantyshall,be binding on saill in any action OF suit at manufacturel1, ageDt, ox: deal/lr, andInay be law to show total or partial failure of consideration in the contract for the sall! ,of said fertilizer. Itsha,U be t;heduty of the commissioner of agriculture tc forbid the saleof any acid phosl'hate, or dis,sofved bone, which is shown' by official anatysiStocontalri less tBan ten per centum of avMlable phosphoric· acid, and also to forbid the sale of any ammoniated superphosphate which is,shown 'by official analysis to contain less than eight per centum of available ,phosphoric acid and two per cent\}ID. pfammonia. A copy of the official analysi$ .Qf any feJ,1;iJizer or cheInical, under sea1 of the department Of agriculture, beadJ;t$sible,as evidence in any'ofthe courts of the state,on the trial ofaD'y ',' .issuemvolving the merits of said fertilizer.'" '. , ·· " , .',.-;, l . ,
,
The manufacturer's guarantied analysis of triumph guano was branded :onthesaoks, aJ;lclexpresses the ' Available phosphate acid, 8per'c(lut. t(j Insoluble .. " 8 per cent. 'to 10 per cent. Ammonia, 2 per cent. to 3 per cent. 10 per cent. to 16 per cent. Potash, The construction placed by the court upon these statutes is that they intended that the manufacturer's guarantied analysis should be either branded or tagged upon the packages of fertilizers, and, if branded with the analysis, that they need not also be tagged. Further, that the manufacturer of commercial fertilizers is not inhibited from selling a product of his factory because it does not contain all the ingredients referred to in the enumeration mentioned in the statute. Provided the manufacturer's guarantied analysis, branded or tagged on the sack or other package, specifies the element which the fertilizer does contain, it need not refer to those which it does not contain. Nothing has been advanced in the
argumenfl)n the motion for new trial which ought. intheopinion of the court, to cause a chan'ge of these rulings. Since this caU8e was tried, and before the motion for new trial was heard, the supreme court of Georgia, in the case of HamlJin v. Rogers, decided at October term, 1886, and not yet published, has construed the same "statute upon the precise ,points here involved. The court say, Mr. Justice HALL delivering the opinion: "All that the party selling is required by IaV\' to is, that the fertilizer contains sUbstantially, the ingredients indicated by analysis attached to it. ... ... * Parties have a right to make their own bargains, provided there i.s nothing in them contravening any requirement of tbelaw," Further,say, the supreme court, "under the circumstl1nces, the court cpmmitted 'no error in refusing to charge the following: ' If you believe from the evidence that the did not have 'inspection tags on the sacks, then the plaintiffs cannot recover, '" and while they qualified, to a. certl1inextent, this holding, by reference, to the particular facts of that case, and say in conclusion, "whether their [i. the tags] absence has the effect of showing that the sale was illegal, is questionable, II this court will go'ftu:ther, .and hold, as stated, thatwhell the manufacturer's guarantiedanalYl;lis is ])randed :upon .the sack, and it sufficiently pears that the fertilizer has been inspected, the contract of parties will not be defeated, and the defendant exempted from paying for an article which he has received,simply because the tags are not appended to the sacks. " It Wl}S said by, counsel for defendant that this is a statute forthe prevention of fraud, and it must, be liberally construed to accomplish that object. That is, no doubt, true; but it should also be so construed that when the purchaser of a commercial fertilizer has bought what the offers to with the opportunity °to know what he is he may,not he,El:xempted by the courts from paying what he has promised, except upon clear and satisfaotory proof that the seller has violated the law. While jt is' highly essential that the interests of agriculture should be protected, it is just as essential that a creditor should have the means of collecting the proceeds ()f a lawful contract, and that the debtor should pay his just debts.
e.,
"
!
.
J,:
BAKER
V.
BURTON.
401
BAKER and others v. BURTON. (Circuit Court, S. D. Georgia, W. D. 1887.)
1.
SALE-VALIDITy-VIOLATlON OF INSPECTlON LAWS.
A sale and delivery by a manufacturer or merchant of commercial ferti· lizers in this state, without any compliance with the laws relative to the inspection and analysis of the same, is absolutely void. OF PURCHASER.
A merchant in this state, who receives such fertilizers with the knowledge that they have not been analyzed and inspected as reqliired by law, and who sells the same to the farmers, is a participant in the wrong, and cannot reo cover, on a set-off, amounts paid to the manufacturer for such fertilizer. (Syllabu8 by the Court.)
S.
Motion to Direct a Verdict HUl &- Harris, for plaintiff. E. G. Simmons, for defendant· ·' SPEER, J. This is an action on account, brought by the manufacturer pf a commercial fertilizer. The defendant, Burton, a dealer in fertilizers, , had purchased of the plaintiffs, the manufacturers, 40 tons of "Solid South" guano, and plaintiffs seek to recover the promised purchase money.. The evidence disclosed the fact that the guano was not tagged or branded, nor had it been inspected or analyzed, as required by law. It certainly could not have been contemplated by the legislature that the person who distributes fertilizers in Georgia without a compliance with the laws relating to the inspection, tagging, or branding ofthe same shoUld be punished, while the manufacturer who shipped his fertilizers into the state, in disregard of these same laws, should go unscathed, and be able to recover the amount claimed to be due for the sale of fertilizers, without reference to the statute preventing such recovery. The law was intended for all. It was intended for the man who sells, and also for the man who ships, no matter where he resides, as well as for the man who distributes. The entire transaction is illegal, and violates section 1575 of the Code. The meaning ofthat section is very clear. The manufacturer who makes the article in this state shall have it inspected at the mill or factory where it is made. Certainly there the obligation is on the manufacturer. If manufactured outside of the state, the statute declares it shall be at the place of delivery to the Georgia merchant who sells in large quantities. Can it be contended that the legislature would provide one rule for the manufacturer in this state, and another for the manufacturer out of the state, but who sells his product here? I think not. The manufacturer in this state must see to the inspection. and one who manufactures outside of the state must see before he sells it that it is inspected pro:vided by law. The mai:lUfacturer outside of the state is as much inhibited from selling it as the former, without inspection. Nor does section 1553 of the Code help the plaintiff in this case. v.31F.no.7-26