Commonwealth v. Stewart , 159 Mass. 113 ( 1893 )

Barker, J.

The St. of 1891, c. 412, § 5, requires every person who furnishes or causes to be furnished to a guest in a restaurant or a hotel, or at a lunch counter, oleomargarine or butterine in the place or stead of butter, to notify him that the substance furnished is not butter. The defendant was the proprietor of a restaurant at which oleomargarine was furnished to one Quinn, in the place or stead of butter. No oral notice was given to him. There were signs in conspicuous places in the restaurant bearing the words, “ Butterine Used Only Here,” and on the tables were bills of fare on which were printed the words, “ Only Fine Butterine Used Here”; but Quinn saw neither of the signs, and did not examine the bill of fare, and so had no actual notice that the substance furnishéd him was not butter. If he had read the signs, or the statement printed on the bill of fare, he would have had sufficient notice; for if knowledge that the substance furnished is not butter is in any way effectually communicated to the guest, the law is complied with. The statute does not require a distinct statement, either oral or written, to be given to each guest on every occasion when he is furnished with oleomargarine or butterine in the place or stead of butter, but is satisfied if, by any act of the person who furnishes it, or causes it to be so furnished, the guest is made aware of the fact that the substance furnished is not butter.

The two counts allege offences on different days, while the statement of agreed facts, as printed, relates to but one occasion. If there was in fact but one occasion to which the statement relates, and the defendant was convicted on both counts, the error can be corrected in the court below. No question was raised at the argument on this branch of the case.

Exceptions overruled.