υ. EVANS running. The delivery note clearly identifies the particular WEATHERITT, consignment with the contract. All the requirements of sect. 25 of the Sale of Food and Drugs Act, 1875, as interpreted in Watts v. Stevens have been complied with. 1907. Sale of Food S. G. Turner (Courthope-Munroe with him) for the respondent. and Drugs -The magistrate was right here, for there is nothing on the face Acts-Milk of the delivery note to connect it with the warranty. Oral evi-Warranty dence would have to have been called to show that this partiEvidence cular consignment was delivered under the contract. He referred warranty with to Harris v. May (12 Q. B. Div. 97), Whitaker v. Pomfret (86 Connection of standing contract 38 & 39 Vict. c. 63, ss. 9 and 25; 62 & 63 Vict. c. 51, s. 20. L. T. Rep. 420; (1902) 1 Κ. Β. 661). Lord ALVERSTONE, C.J.-I think that the magistrate has erred by attaching too much importance to the form of the delivery note which identifies this consignment of milk as having come from the Great Western and Metropolitan Dairies, and he seems to have thought that we meant to lay down in Watts v. Stevens, when we held that there must be a written connection between the warranty and the particular consignment of goods that that written connection could only be proved by the delivery note sent with the particular consignment of milk containing something which connected that consignment with the warranty in the contract. The whole of this case depends on the construction of sect. 25 of the Sale of Food and Drugs Act, 1875, as explained by the cases. I do not intend to go again through the cases, and I accept the law as we endeavoured to lay it down in Watts v. Stevens, in which all these cases were considered. None of the cases to which reference has been made, including Watts v. Stevens, when they are considered from the point of view as to whether there was a connection between the general warranty and the particular consignment, conflict with the view I take in this case. In Watts v. Stevens Darling, J. said: "In my opinion, according to the cases which have been decided on this question, some connection must be established between any particular article subsequently supplied and the warranty which is relied on. It may be that the circumstances of this case are such as to give the respondent a right of action against his vendor for breach of warranty, but I have come to the conclusion that there is not sufficient evidence connecting the particular consignment of milk in question with the warranty contained in the letter of the 5th day of August, 1905, so as to enable the respondent to bring himself within the protection afforded by sect. 25 of the Act. I think there is good reason why a person in the position of the respondent should not be permitted to rely on the terms of a general contract or warranty made some time before the particular goods are supplied. It is much more likely that he will in that case be careless and supply inferior goods than he would be if he were bound to give a separate warranty with each particular consignment, or, at any rate, a writing expressly connecting the assignment with the warranty previously given." I must point out that Darling, J. did not say that writing must contract. DARLING, J.-I have arrived at the same conclusion, but not EVANS υ. WEATHERITT. 1907. Sale of Food and Drugs Acts-Milk - Warranty Evidence of warranty with standing Connection contract 38 & 39 Vict. EVANS 1907. without some difficulty. It is difficult to come to any conclusion WEATHERITT. Upon the sections of this statute in accordance with the previous cases. It appears to me that this case is sufficiently different in its facts from Watts v. Stevens to make our judgment reconcileable with that case. In Watts v. Stevens the warranty was contained in Sale of Food and Drugs a letter written after the contract, and was as follows: "Iguarantee Acts-Milk that the milk supplied by me to Mr. Stevens is perfectly pure, -Warranty and with all its cream as the cow gives it." But there was Connection of nothing on the face of it to show that it referred to more than warranty with one consignment of milk. It was there held that there must be -Evidence standing contract 38 & 39 Vict. c. 63, ss. 9 and 25; c. 51, s. 20. some connection in writing between the particular consignment and the warranty in the contract. We held there was no such connection. In this case the appellant took his milk from the Great Western and Metropolitan Dairies under an agreement 62&63 Vict. containing these words: "The purchaser agrees to purchase of the vendor the whole of the milk required for his dairy carried on at 52, Darwin-street for twelve months certain from the 1st day of October, 1905." This milk was required for his dairy at 52, Darwin-street, and unless there was evidence that he had broken his contract by purchasing milk elsewhere (which was not suggested), it follows it must have been supplied by the Great Western and Metropolitan Dairies under the agreement. Although I do not say that the delivery note is necessary to prove the connection between the milk supplied and the warranty, it is more valuable than oral testimony. It shows that in June, 1906, the milk in question was milk delivered to the appellant by the Great Western and Metropolitan Dairies while the agreement containing the warranty was running, and as the agreement provides the whole of it was to be of the quality guaranteed, and the appellant was to take the whole of his milk from the dairy company, this warranty must relate to the milk in respect of which these proceedings were taken. I am conscious that something I have said at the end of my judgment in Watts v. Stevens may have given rise to some difficulty in this case. After I dealt with the cases, I did give a general reason why the conclusion to which we came might be regarded as a beneficial one, and in giving an unnecessary justification for the action of the Legislature I did use the words which might have misled the magistrate. It seems to me, however, that the connection here is sufficiently established to satisfy the rule we laid down in that case. A. T. LAWRENCE, J.-I am of the same opinion. I think the essential difference between this case and Watts v. Stevens is that in that case it was found as a fact that the milk had not been purchased with any warranty, except in so far as the letter written subsequently to the contract constituted a warranty of that milk, and this Court was of opinion that there must be something in writing connecting the particular consignment with the warranty. But in this case it is found that the milk was delivered to the appellant " under and by virtue of the contract," EVANS υ. WEATHERITT. 1907. that is to say under the agreement for the sale and purchase of the whole of the milk required for the appellant's dairy, and that agreement contains an express warranty that it is pure with all its cream as received from the cow. Those findings seem to me to make a clear distinction between this case and Watts v. Stevens, Sale of Food and when I look at sect. 25 of the Sale of Food and Drugs Act, and Drugs 1875, I cannot construe it in any way that will not make this Acts-Milk warranty in this agreement a written warranty given with the - Warranty particular article purchased. Sect. 25 says: "Purchased Connection of with a written warranty to that effect," and it is impossible warranty with .. to give a meaning to those words without holding that they are satisfied by the facts of this case. Solicitors: John T. Lewis; G. C. Topham. Appeal allowed. -Evidence standing contract 38 & 39 Vict. c. 63, ss. 9 and 25; 62 & 63 Vict. c. 51, s. 20. KING'S BENCH DIVISION. Tuesday, March 26, 1907. (Before Lord ALVERSTONE, C.J., DARLING and DUROSE (app.) v. WILSON (resp.). (a) Disorderly house-Block of flats-Some flats used for prostitution -Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), s. 13. The appellant was employed by the owner as a porter residing on and in charge of premises consisting of a block of eighteen flats. Among the tenants of the flats were twelve women, who were in the habit of bringing different men nightly to the premises for the purpose of prostitution. The appellant knew the purpose for which the women used the premises, but it was not proved that any one flat was used by more than one woman. Held, that the appellant was rightly convicted under sect. 13 (3) of the Criminal Law Amendment Act, 1885, of being wilfully a party to the continued use of such premises or part thereof as a brothel. CASE stated on an information preferred by the respondent against the appellant for that the appellant between the 5th and 12th days of June, at Creighton-mansions, being the (a) Reported by W. DE B. HERBERT, Esq., Barrister-at-Law, DUROSE υ. WILSON. 1907. Criminal Law agent of the landlord of those premises, was wilfully a party to the continued use of such premises or part thereof as a brothel, contrary to sect. 13 of the Criminal Law Amendment Act, 1885. The following facts were proved : Amendment The premises called Creighton-mansions were a block of flats, Act, 1885- and the appellant was employed by the owner thereof as a Disorderly porter residing on and in charge of the premises. house-Flats -User for Among the tenants of the flats were twelve women, who on purposes of the dates mentioned in the information were in the habit of prostitution- bringing different men nightly to the premises for the purpose Separate of prostitution. occupationUse of block of flats as a brothel 48 & 49 Vict. c. 69, s. 13. The appellant knew the purpose for which the women used the premises. He did not collect the rents, but it was part of his duty to evict undesirable tenants, including women who used the premises for promiscuous prostitution. The premises consisted of one large building, the external appearance of which was that of one large house. Internally the building was divided into eighteen flats let to different tenants, but all under one roof and reached by one common staircase. Each flat was self contained and could be occupied as a separate dwelling. There was only one street door giving access to the common staircase. Each tenant had two keys of the flat which he or she occupied, but none of them had a key of the street door. The street door stood open by day and until midnight. At midnight it was closed by the appellant, and from midnight until 2 a.m. the appellant used to wait in the street outside and admit the women and the men they brought by unlocking the door with the key he had. When couples left after midnight the appellant called cabs for them and received tips from the men. There was no evidence to show what happened after 2 a.m. All the women lived in the building, but there was no evidence to show which flat was occupied by which woman, nor whether there were other tenants as well as the women, nor was it proved that any flat was used by more than one woman. It was argued on behalf of the appellant that each of the flats was a separate tenement, and that there was no evidence that any one of them was used as a brothel, and that therefore, although situated in one building, they did not collectively constitute a brothel. There is no definition of the word "premises" as used in sect. 13 of the Criminal Law Amendment Act, 1885. The magistrate held that "premises" in this case included all the flats contained in the building known as Creightonmansions, and that Creighton-mansions was in fact used as a brothel. He therefore convicted the appellant of being wilfully a party to the continued use of the premises as a brothel. |