Luchini v. Roux

KERRIGAN, J.

This action was brought by plaintiff, who was a dairyman, upon two causes of action for the recovery of the sum of $1,609.55. The first was for the sum of $1,339.49 upon an account stated, and was based upon the sale of milk, wood, horses, hogs, and hay. The second was for milk delivered to the defendants by plaintiff at an agreed price of $270.06.

Defendants, who were cheese manufacturers, in answer to the first cause of action, denied that an account was ever stated, or that they ever promised to pay the plaintiff any balance due; and further denied that there was due from them any sum whatever upon the second cause of action.

As a separate and distinct defense to both counts, defendants alleged that the plaintiff had no legal capacity to sue upon or maintain the alleged cause of action, for the reason that he had failed to comply with the provisions of sections 6 and 16 of the so-called Dairy Act, requiring those engaged in the dairy business to register as provided by the act; and that the sales, in so far as the milk was concerned, were wrongful within the meaning of the act, and that no recovery could be had therefor.

The court found that the milk respecting which an account was stated was not adulterated, and that the sale was not wrongful within the meaning of the act, and rendered judgment in favor of the plaintiff and against the defendants in the sum of $1,339.49, the full amount alleged to be due upon the account stated. It further decreed that plaintiff take nothing upon his second cause of action.

[757]

Defendants appeal from such, judgment, and from the order denying a new trial.

The main contention upon which the defendants rely for the reversal of the judgment and order is that plaintiff is not entitled to recover the amount of the account stated for the reason that he did not register his dairy with the state dairy bureau as provided by the Dairy Act (Stats. 1911, p. 959). The sections involved as a defense are as follows:

“Sec. 6. Every person, firm or corporation operating any dairy, where more than four cows are milked, and every creamery, cheese factory, receiving station, skimming station, ice cream or ice milk manufacturer, or milk condensary, shall on or before the first day of November of each year, cause to be registered with the secretary of the state dairy bureau a statement showing the full name and address of such person, firm or corporation so operating the same, and also the full name and address of the owner or owners of the business so being operated, in case the person operating the same is not the owner, together with a statement of the class of such business carried on by such person or corporation, and the number of cows then being milked, in case of a dairy.”