Tabor v. Herrick ( 1882 )

• The opinion of the court was delivered by

Redfield, J.

The declaration counts upon the statute No. 76 of the acts of 1870 for a forfeiture. The statute declares that:

“ Whoever shall knowingly sell, supply or bring to be manufactured, to any butter or cheese manufactory in this State, any milk diluted with water,” etc., . . or any butter or .[cheese manufacturer who shall knowingly use, or direct any of his employees to use, for his, or their individual benefit, any cream from the milk brought to said butter or cheese manufacturer, without the consent of all the owners thereof, shall for each and every of-fence forfeit and pay a sum not less than $25.00, nor more than $100.00, with costs of suit to be sued for in any court of competent jurisdiction, for the benefit of the person or persons, firm or association, or corporation, or their assigns upon whom such fraud shall be committed.”

The plaintiff avers that he is the owner of the “ factory” ; that he was manufacturing butter and cheese; that “ the defendant with divers other persons furnished the plaintiff milk for use in such manufacture or such cheese factory ” ; but there is no averment that the plaintiff, at other persons were defrauded. To this declaration there is a general demurrer.

It was decided by this court, in this county Jan. T., 1880, Graves v. Goodell, that an action under this statute in the name of all the “ patrons” jointly was well brought, against the claim made by defendant, that the manufacturer, or proprietor of the “ factory,” should have brought the suit.

It is now claimed that either may properly sue under this statute. In the case of Thompson et al. v. Towe, 46 Barb. 287, which was brought on a statute of which this is a copy, and in the name of all the patrons who furnished milk to the “ factory,” the court held that the suit was properly brought, and say: “ Now it is true the act does not in terms specify by whom the action is to be brought; but in the absence of any such specification it must be held,.that it must be in the names of the persons for whose benefit the suit is brought.”

The fraud was upon the persons who had the beneficial, interest in the manufactured product of the milk; and upon them only. The owner of the factory may be interested solely in the building and its rents ; and not in the products of the manufacturer. And the manufacturer of butter and cheese, if paid for his time in a stated salary, would not be defrauded by the furnishing of impure or diluted milk, and would not be the person “ for whose benefit ” the forfeiture is declared.

The same statute declares that the manufacturer shall be subject to'the same penalty if he shall take any cream for his own use from the milk thus furnished. As he could' not sue himself, such suit must be brought in the name of the patrons, who are the “ persons defrauded,” and for whose “ benefit ” the suit is brought. “ When two or more suffer by an injurious act, and the damage to one is the same as to the other, they are jointly entitled to repair it. One loss only has been sustained, and therefore only one satisfaction is due ; of necessity these both are jointly concerned in demanding it.” Hammond’s Parties to Action, s. 2, 42. “ Joint creditors, joint tenants and co-parceners must, respectively, join in actions to recover the estate which they respectively hold together ; and in all actions for injuries to their joint property.” Gould PL s. 56, 189.

All the analogies of the law concur in holding that the persons defrauded or injured in their property should be the parties to the action in case redress for such injuries is sought. And wo think the manufacturer, and owner of the “ factory,” without averment, that he is interested in the manufactured products of the milk, or in some way injured or “ defrauded,” cannot recover the forfeiture under this statute.

The judgment of the County Court is reversed, and judgment for defendant to reeover his costs.