Barron County Canning & Pickle Co. v. Niana Pure Food Co. , 191 Wis. 635 ( 1927 )

Owen, J.

The question of ranking importance is whether the defendant was entitled to cancel the contract because the cans were slack filled. By the terms of the contract the plaintiff guaranteed that the peas to be delivered under the contract would comply with the Pure Food and Drugs Act and should not be in any manner adulterated. The Pure Food and (Drugs Act prohibits the adulteration of foods. That act provides that foods shall be deemed to be adulterated “if any inferior or cheaper substance or substances have been substituted wholly or in part for it.” The presence of brine is necessary in canned peas. In view of the fact that brine is cheaper than peas, it is apparent that great fraud could be perpetrated if the canner were under no restrictions as to the amount of brine that might be introduced into the can. Manifestly there should be sufficient to' preserve the peas. Manifestly, also, brine in excess of such an amount constitutes an adulteration. The evidence in this case shows that the brine should be just sufficient to cover the top of the peas. The undisputed evidence shows that the brine in the cans packed by plaintiff under this contract was much greater in amount. The evidence on the part of the defendant shows that the brine covered the peas as much as an inch. The evidence further shows that the federal regulations require such cans to contain thirteen and one-half ounces of peas drained weight. According to the testimony of the plaintiff company the cans did not contain in excess of twelve ounces drained weight, while there is testimony on the part of the defendant to the effect that some cans did not contain more than eleven and one-half ounces drained weight. The president of the plaintiff company frankly admitted on the stand that the cans were slack filled according to government regulations. A can which contains but twelve ounces of peas contains less than ninety per cent, of the food substance which not only may be, but ordinarily is, ‘present in a properly packed can of peas of the size here under consideration. This must constitute adulteration under the Pure Food and Drugs Act.

A number of cases, statements of which have been issued by the department of agriculture from time to time, in which convictions have been obtained under the Pure Food and Drugs Act for adulteration or misbranding because of the presence of excessive brine in canned foods, have been called to our attention by the attorney for the defendant. In one such case a conviction was obtained where the label declared the contents to be six pounds and twelve ounces, while an examination of twenty-four cans showed an average net weight of six pounds nine and seven-tenths ounces. Whatever weight should be accorded these cases, they give reassurance to-the conclusion that the presence of excessive brine in the cans packed by the plaintiff under this contract constituted an adulteration and a violation of the Pure Food and Drugs Act.

In view of the fact th'at the plaintiff, when attention was called to the slack fill of the cans, did not protest the charge and did not offer to fill future cans in any different way, but insisted that defendant should take the cans as they were then being filled, it seems clear that the defendant was justified in canceling the contract and in declining to receive .any future deliveries thereunder. Davidor v. Bradford, 129 Wis. 524, 109 N. W. 576. The fact that defendant had accepted partial delivery, as hereinafter determined, did not constitute a waiver of its right to cancel the contract for future breaches. 24 Ruling Case Law, p. 286, § 566.

We now come to a consideration of the question whether the defendánt had accepted the peas packed under the supervision of Christensen- and stored in the warehouse of the plaintiff. The contract provides:

“Buyer to keep'agent at factory during-first days of pack, until at least 8,000 cases are in warehouse. Said agent to grade the entire pack of peas packed -under this contract into the warehouse, and peas so graded and stored in warehouse to be accepted by buyer as graded and stored.”

The reason for this provision seems to have been, first, that the plaintiff had had no experience in packing pod-run peas or peas ungraded as to size; second,'that these peas were to go- out under the Niana label, which required that they be processed in. the same manner that peas bought from and processed in other factories were packed for the.Niana label. For the purpose of complying with this provision of the contract, the defendant sent Christensen to Chetek to supervise the packing of the first 8,000 cases of peas. , He did supervise.the packing of 8,963 cases, of peas and these were stored in the warehouse of plaintiff. Under the terms of the contract this would seem to constitute an acceptance qf the peas. Defendant contends otherwise, because, it says, Christensen had nothing to do with the filling of the cans and had no authority to bind defendant in this respect as its agent. There is nothing very substantial to this contention. It is probably true that the presence of Christensen was due to the inexperience of the plaintiff in-packing pod-run peas, and the further fact that the pea!s were to be .packed according to the Niana process. The president, of the defendant company testified that Christensen was to see to'it “that these peas would be packed as peas should be packed for our labels.” He further testified: • ¡

“I didn’t have to give him a long drawn-out specific instruction, This man had packed peas for the Niana label for a number of years. My instructions were very brief to him, indeed. I told' him that these people, as nearly as I understood it, had never packed ungraded peas before. .1 told him, ‘Now, Bill, you go up and show them how to pack them.’ That-meant to me that he would inform and instruct the'superintendent of the Chetek plant'as to how to handle his raw stock. That would be the green peas, before cooking; and how to handle the processing; as we speak of it, that operation of processing covers the whole., thing, of course. Cooking of the peas in the can; and' it w'duld mean the blanching of the peas, which is the most important phase of the whole process, so aá to permit those people to pack in their plant, peas that would match the peas that were packed in other plants for our label. The blanching was one of the most important things we had to watch. . . . He would naturally watch the^time and temperature at which the stuff was cooked, so that we would be assured that the stuff would keep after it came out of the retorts. He would watch the cooling after they came out of the retorts, because, unless they are promptly cooled, the liquor is cloudy. And he would watch the flavor of the liquor, and he would watch the fill of the cans. That would require him to.be over the whole, plant during the process. • All around, from time to time. He would be a free lance around .the plant; nose into anything that wasn’t going just exactly right.”

And again he testified:

“If he found the cans were slack filled, I would expect him as our representative of this plant to call their attention to it.” . . • ' : •

This testimony shows that Christensen was present as the representative of the company with general powers to see that the peas were properly packed. While probably he would not have been there for the limited and express purpose of observing the fill óf the cans, that does not€ change the fact that, being there charged with such a general responsibility, he did represent the defendant in all matters pertaining to the packing of the peas. In view of the express provision of the contract that.peas graded and stored in the warehouse are to be accepted by the buyer as graded and stored, there is very little substance in the claim that the 8,963 cases of peas packed under the watchful supervision of defendant’s accredited agent and stored in the warehouse were not accepted by the defendant.. We have very little difficulty in affirming the conclusion of the trial court on this branch of the case.

We now come to a consideration of the defendant’s coun--terclaim. The jury found, by. its answer to question 4 of the special verdict, that the defendant did not use reasonable efforts to purchase at the lowest price obtainable, in the market peas contracted to be furnished by plaintiff. The court, in disposing of defendant’s counterclaim», said:

“Referring particularly to the answer to question 4, I think that in view of all the testimony as to the market value of peas, and in view .of the way peas were purchased by the defendant from factories in which the president of defendant had some interest, or over which he exercised more or less control, the situation was such that the jury might well find that the defendant did not use reasonable efforts to purchase peas at the lowest price obtainable in the market.”

While there is much evidence to support a different answer to question 4, we cannot say that the answer returned finds no support in the evidence. That matter was evidently given careful consideration by the trial judge, who felt that the answer should not be disturbed. We have carefully examined the record upon this question, and we do not feel warranted in saying that the verdict finds no support in the evidence, and therefore the answer to question 4 should stand. From this it follows that the defendant is not entitled to recover on its counterclaim.

By the Court. — Judgment affirmed.