WOOD, J. This was a suit by Pattie Barfield, as administratrix of the estate of R. H. Barfield, deceased, for the benefit of herself, as widow, and Lusky Barfield, the next of kin, of R. H. Barfield. The complaint alleged that she had been duly appointed administratrix of the estate of R. H. Barfield; that she was the widow of R. H. Barfield, and that Lusky Barfield was their minor child; that R. H. Barfield, her husband, was made sick and afterwards died from the effects of poison caused by eating bread made from the flour which was sold to him by the appellant. The complaint alleged:

That the suffering and death of R. H. Barfield "was caused by said wrongful act of the defendant in selling for use as human food said flour, which was impure and unwholesome and contained poison as hereinbefore set out, and of the presence of which poison the defendant knew, or should have known in the exercise of that care required of him by law."

The complaint as to the charge of negligence was the same as that in the case of S. Heinemann v. Pattie Barfield, 207 S. W. 58. Other allegations were as to R. H. Barfield's sickness, suffering, and death. There was an allegation that the deceased contributed to the support of said widow and child, and by his death they have been deprived of his companionship and care and of his support. There was a prayer for damages for the benefit of the estate in the sum of $10,000, and also for the benefit of the widow and child in the sum of $10,000.

There was a motion to make the complaint more specific and a demurrer to the complaint, both of which were overruled. The answer denied the material allegations of the complaint except as to the representative capacity of the plaintiff. The facts on the issue of negligence are the same as those developed by the evidence in the case of S.

Heinemann vs. Pattie Barfield, and the instructions are the same, except that in the instant case the court authorized the jury, in case they found for the plaintiff, to return a verdict in separate amounts for the benefit of the estate of the deceased, R. H. Barfield, and also for the benefit of his widow and next of kin. The jury returned a verdict for the benefit of the estate in the sum of $2,000 and for the benefit of the widow and next of kin in the sum of $3,000, and from a judgment rendered according to the verdict is this appeal.

The ruling of the court was correct in overruling the motion to make the complaint more specific and the demurrer to the complaint. The complaint states a cause of action, as was held in the case of S. Heinemann v. Pattie Barfield. The facts on the issue of negligence and the instructions to the jury on that issue were the same as those in the case of Heinemann v. Pattie Barfield, and this case is ruled by that on the issue of negligence.

The judgment in favor of the appellee for the benefit of the estate of R. H. Barfield is right, and should be affirmed, for the further reason that there was testimony from which the jury might have found that the sale was made to R. H. Barfield, and, such being the case, his representative for the benefit of the estate would be entitled under the pleadings and proof to a judgment based upon the doctrine of implied warranty.

In Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210, it is said:

"In an ordinary sale of goods the rule of caveat emptor applies, unless the purchaser exacts of the vendor a warranty. Where, however, articles of food are purchased from a retail dealer for immediate consumption, the consequences resulting from the purchase of an unsound article may be so serious and may prove so disastrous to the health and life of the consumer that public safety demands that there should be an implied warranty on the part of the vendor that the article sold is sound and fit for the use for which it was purchased."

This doctrine was approved in Nelson v. Armour Packing Co., 76 Ark. 352, 355, 90 S. W. 288, 289 (6 Ann. Cas. 237), where Judge Battle, speaking for the court, said:

"In the sale of provisions by one dealer to another in the course of general commercial transactions the maxim caveat emptor applies, and there is no implied warranty or representation of quality or fitness; but, when articles of human food are sold to the consumer for immediate use, there is an implied warranty or representation that they are sound and fit for food."

See also, National Cotton Oil Co. v. Young, 74 Ark. 144, 85 S. W. 92, 109 Am. St. Rep. 71, 4 Ann. Cas. 1123; Doyle v. Fuerst & Kraemer, 129 La. 838, 56 South. 906, 40 L. R. A. (N. S.) 480, Ann. Cas. 1913B, 1110; Elliott on Contracts, § 129; 15 Am. & Eng. Ency. of Law (2d Ed.), 1238; 11 R. C. L. 1119; Mechem on Sales, § 1356; 35 Cyc. 407; Catani v. Swift & Co., 251 Pa. 52, 95 Atl. 931, L. R. A. 1917B, 1272; Craft v. Parker, 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139. See, also, note to McQuaid v. Ross, 22 L. R. A. 187-195, and cases in note to Farrell v. Manhattan Market Co., 15 L. R A. (N. S.) 884.

There is no reversible error in the record, and the judgment is therefore affirmed.

NOTE. Caveat Emptor Not Applicable to Food Sold to Consumer.-The question of the liability of anyone participating in the disposal of food for human consumption, either indirectly or directly, to a consumer, for its unfitness, has become of much interest in trade. A recent case decided by Second Circuit Court of Appeals affirms a ruling by a district court against a meat packer in favor of a domestic in the family of a purchaser from a retail dealer of diseased meat. Ketterer v. Armour Co., 160 C. C. A. 111, 247 Fed. 921, L. R. A. 1918 D, 798.

This case was heard by three of the ablest members of the Circuit Court: Ward, Rogers and Hough, C. J. J., and the unanimous opinion was handed down by Rogers, C. J. It plants itself upon the common law right of individuals to the enjoyment of life, health and reputation against all practices by others in the pursuit of their own ends, which naturally may endanger this right.

Discussing the rule of there being no implied warranty of the general fitness of anything sold simply as merchandise, the opinion shows that it has been held in many cases, that where food for human consumption is sold, there is a warranty that it is not dangerous to him who eats it. Thus in 1893 this was held in Craft v. Parker, 96 Mich. 245, 55 N. W. 812, 21 L. R. A. 139; in 1897 in Wiedeman v. Keller, 171 Ill. 93, 49 N. E. 210; in 1905, in Salmon v. Libby, 219 Ill. 421, 76 N. E. 573, in 1914, in Parker v. Yost Pie Co., 93 Kan. 334, 144 Pac. 202, L. R. A. 1915 C, 179. 2 Cooley on Torts 3d Ed. 1489, points out that there is a public duty on anyone selling poisonous drugs and patent medicines containing ingredients calculated to produce injury and unwholesome food. This public duty leaps over all questions of warranty, express or implied, and does away with all refinement in this regard.

As to a drug, careless labeling, whereby a deadly poison goes to ultimate purchaser as a harmless medicine, gives the right to anyone misled to his injury the right of redress, whether he stood in contractual privity or not to any person responsible for the error. This was held as early as 1852 in Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455.

In 1889 in Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. R. 324, the proprietor of a patent medicine was held liable for injury to purchaser from a retailer

using according to the prescription on the bottle placed thereon by the proprietor, this court spoke of secrecy in the formula from which the proprietor intended to derive profit and said he was liable "for all injuries sustained by anyone who takes the medicine in such quantities as may be prescribed by him." This goes further than holding that poison fraudulently labeled imposes liability on a tort feasor. It places a possibly innocent act on the same plane as a willful wrong.

In Weiser v. Holzman, 33 Wash. 87, 99 Am. St. R. 932, it was held in 1903, that delivering to another, for resale in ordinary trade, an article intrinsically dangerous to human life or health, without notice to any purchaser, remote or immediate, brings liability if without his fault injury ensues.

In 1908 Chancellor Pitney of New Jersey Court of Errors and Appeals, said that when a manufacturer of goods to be put on the market for sale to customers, goods for human consumption, and the consumer has no opportunity to gain knowledge of their quality, if they are unwholesome or unfit for consumption, and he relies on a representation of fitness arising out of the goods being offered for sale in such market, the manufacturer becomes liable for injury to a

customer.

And further it was said that governmental inspection laws were not to be looked on at all as relieving a manufacturer or other wrongdoer from his general liability. Those laws were for governmental purposes only and if they work out additional safeguards, this is incidental only. O'Connor v. Armour Packing Co., 85 C. C. A. 459, 158 Fed. 241, 15 L. R. A. (N. S.) 812, 14 Am. Cas. 66, decided in 1908; Catani v. Swift & Co., 251 Pa. 52, 95 Atl. 931, L. R. A. 1917 B, 1272, decided in 1915. In this last cited case, the court said: "The common law duty to sell only wholesome food still remains, and the burden of discharging this duty has not been shifted to government inspectors."

But the Ketterer case does hold that if a manufacturer of food resorts to all known means to discover poison in food, such as trichinal, and it is accepted by the trade as pure food, he ought not be held, because such an article could be regarded as a proper article in commerce. This seems proper, if there is to be any fair measure of things regarded as harmless in intercourse and trade. Guaranty of purity is only a guaranty within the legitimate bounds of human endeavor. No contracting party is to be held, where he acts in good faith, to the impossible. C.

ITEMS OF PROFESSIONAL

INTEREST.

REPORT OF MEETING OF KANSAS BAR ASSOCIATION.

The thirty-sixth annual meeting of the Bar Association of the state of Kansas was held in Topeka, January 30-31, last. It was one

of the most successful meetings of the many that this association has enjoyed.

President W. E. Higgins of Lawrence, who is seeking health in Colorado, furnished an address which was read for him, entitled: "Some Problems of Speed and Certainty in Our Trial Courts." It was received with considerable favor by the lawyers present, and has had some attention from the newspapers.

The annual address was given by Hon. George T. Page, president of the American Bar Association, before a splendid audience in the Supreme Court room, on the night of the 30th. The title of the address was, "The American Bar Association," after the delivery of which Mr. Page was unanimously voted an honorary member of the Kansas State Bar Association. There were seven other addresses, all very fine, and all timely.

The officers elected are:

President Judge John C. Hogin of Belle

ville.

Vice-President J. D. Houston, Wichita, Kan. Secretary-D. A. Valentine, Clay Center. Treasurer-J. G. Slonecker, Topeka.

The executive council was chosen, headed by B. S. Gaitskill of Girard. This council really runs the affairs of the association at all times when it is not in session.

The meeting closed with a banquet in the Masonic temple, attended by about two hundred of the lawyers of the state. It was a brilliant affair, and in net product somewhat ahead of the high standard of such affairs heretofore maintained.

BOOK REVIEW.

WIT, WISDOM AND PHILOSOPHY.

Once in a while a poet, a wit or a philosopher sometimes succeeds in getting upon the bench. but it is seldom that in one man all three get on the bench at the same time, yet that is what actually happened in Missouri, and the rara avis was none other than the Hon. Henry Lamm, former Chief Justice of Missouri and a member of the Supreme Court of that State .from 1905 to 1916.

From the opinions of Justice Lamm, delivered during a period of twelve years, a devotee and admirer in another state, Mr. Fred C. Mullinix, of Jonesboro, Ark., has excerpted from Judge Lamm's opinions the wise sayings, the flashes of wit, the beautiful word pictures, and

the snappy epigrams filled with the condensed good sense of the ages, and presents them to the reader, classified and indexed, ready for either use or pleasure.

We remember when we were in college and had time for rumination, how well we loved to read the Reflections and Table Talk of that transcendental dreamer and philosopher, Samuel T. Coleridge. We have had the same pleasure, and we might add, profit, in reading the bits of legal reflections which Mr. Mullinix has gleaned from the writings of Judge Lamm.

In this busy, work-a-day and matter-of-fact world, it is refreshing occasionally to get away for a few hours to let the mind have full rein and wander where it will through the great avenues of space and time, studying the experiences of all men of all ages. And it is safe enough to do this with Judge Lamm, for he is sane enough always to keep in touch with the realities of life.

Intellectual pleasure and refreshment are not the only advantages to be derived from reading such a book as this. There will be found here and there many a nugget of truth so clear and compact as to startle the mind by its brilliancy. The wise use of such epigrammatic forms of speech will often rouse the sluggish mind of some judge into a clear appreciation of one's argument.

Among some of the shorter excerpts from Judge Lamm's opinions found in the volume before us may be quoted, at random, the following:

"Sometimes an exclamation is as good as a disclosure."

"The law is more praised when it is consonant with reason."

"A fair test of the matter is to put the shoe on the other foot."

"If two opinions split the way, hear what conscience has to say."

"Where there is a will, there is not always a way to break a will."

"Justice must not be sacrificed upon the sharp edge of technicality."

"A court should not decide what is not judicially presented before it."

"One of the inherent rights of every court is the right to change its mind."

"Law: A bundle of rules to make life more tolerable among civilized men."

"Plaintiffs go into court voluntarily; defendants are pulled in by the ears."

"This being a court of errors, we sit to correct our own as well as those of others." "No argument against the use of a thing can be drawn from the abuse of a thing." "While the dead tell no tales, neither can the dead defend themselves against tales."

"In the eye of the law no one can successfully build a superstructure of right upon his own wrong."

"Courts should not torture or twist a statute into a device for obtaining property under false pretenses."

"When fraud comes in at the door, all contrivances to consummate it fly out at the window in chancery."

"We take judicial notice that the need of money is an abiding infirmity, natural and common to all men."

"A judge should have two salts-the salt of wisdom, lest he be insipid; and the salt of conscience, lest he be devilish."

"There is a pronounced line of demarcation between what is said in a legal opinion and what is decided by such opinion."

"If courts unsettle a rule of law, the door is opened wide for confusion to come in; certainty being the very essence of good law."

"The master voice of humanity cries out, and the law, an invention for the welfare of man, knows its master's voice and heeds it."

"No system of laws could for one minute command a whit of respect that would add to the delays of the law the intolerable burden of reversing judgments on every error whatsoever."

"It is the brightest jewel in the crown of the law to seek and maintain the golden mean between defamation, on one hand, and a healthy and robust right of free public discussion on the other."

"The beautiful character of pervading excelliency, if one may say so, of equity jurispru dence, is that it varies its adjustments and proportions so as to meet the very form and pressure of each particular case in all its complex habitudes."

Printed in one volume of 218 pages, limp binding, by the compiler, and for sale by the Central Law Journal Company.

BOOKS RECEIVED.

Hand Book on the Modern Law of Evidence. A Concise Statement of the Rules in Civil and Criminal Trials, Based Upon the Modern Law of Evidence by Charles Frederic Chamberlayne, Editor of American Edition of Best's Principles of the Law of Evidence, American Edition of Taylor on Evidence. Edited by Arthur W. Blakemore of the Boston Bar, Editor of Blakemore and Bancroft on Inheritance Taxes, etc., and Dewitt C. Moore, Author of "The Law of Carriers," "Fraudulent Conveyances," and Editor of "Wood on Limitations," 4th Edition. Albany, N. Y. Matthew Bender & Company. 1919. Price, $12.00 Review will follow.

HUMOR OF THE LAW.

"It would seem a flagrantly clear case,” said the magistrate, adding to the burglar who had been haled before him. "What have you to say for yourself?"

"Not much, your honor. But I hope you can give me a short sentence. This is my busy season."

The lawyer had been away in the country calling upon a client, but on his return there were signs of loafing and laziness on the part of the junior clerk.

"Thomas, that typewriter has not been touched today?" snapped the man of law.

"Oh, sir!" ejaculated Thomas, "Why, I was using it only an hour ago!"

"Then," thundered the employer, "how comes it that there's a spider on the machine and that he's woven a web over the keyboard?”

"Sir." remarked the lad, "I'll tell the truth. There was a fly in the works of the machine. Rather than waste my time in entrapping the insect, sir-I-er-introduced the spider, sir." -London Tit-Bits.

At the application department of the gas office, a few days ago, a man was somewhat taken aback when the clerk said to him:

"Of course you know you will have to leave a deposit of $5."

"No," the man replied. "I didn't know that. What's that for?"

"Security against loss to the company." "I don't think that's fair."

"But, of course, you know, we pay interest at 6 per cent."

"You pay interest at 6 per cent?" "Oh, yes."

"That's different."

The next day the man approached another clerk at the application window and said: "This is the place you leave deposits for meters, isn't it?"

"Yes," the clerk replied.
"At 6 per cent?"
"Exactly."

Then, to the astonishment of the clerk, the man presented a big roll of bills and remarked: "I made a deposit of $5 here yesterday and I want to raise it to a thousand."-Youngstown Telegram.

WEEKLY DIGEST.

Weekly Digest of Important Opinions of the State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

Alabama..

Arkansas..

California

Colorado

Florida

Georgia

Indiana..

Nebraska..

..7, 12, 29, 35, 54, 61, 72, 76, 86 ...1, 25 .32, 42, 73, 87

77

.81 .38 ..46, 60, 66, 78 Iowa..4, 15, 16, 20, 28, 30, 39, 43, 44, 64, 69, 80, 92 Kansas ..63, 75 Kentucky.......5, 26, 27, 37, 40, 58, 70, 71, 82 Minnesota. ...23, 34, 74, 89 .47, 50, 51, 52, 67 .48, 49 .36 ..31, 56, 57 .18, 21, 33, 41, 68, 91 ....2, 88 .45, 59, 62, 84 .9, 14, 17, 23, 24, 53, 79, 85, 90 ..6, 13, 22, 83 .3, 8, 10, 11, 19, 65

New Jersey.

New York

North Carolina.

Oklahoma....

3. Appearance Quashing Service. Where defendant appeared specially and moved to quash service, its objection, upon hearing of motion, to amendment of plaintiff's complaint, did not constitute a general appearance, where no affirmative relief was asked thereby; such objection being in no wise inconsistent with special appearance.-Alaska Pacific Nav. Co. v. Southwark Foundry & Machine Co., Wash., 176 Pac. 357.

4. Assignments-Good Will.-Where seller of business sold its good will and agreed not to enter into such business in city in competition with buyer for five years, agreement was enforceable against seller by buyer's assignee, purchaser of business from her; the rights acquired not being personal to the purchaser alone, but incident to the sale of the business. -Sickles v. Laumann, Iowa, 169 N. W. 670.

5. Bailment-Conversion.-Where a chattel has been rendered worthless by bailee, bailor may treat it as a conversion and sue the bailee for its value.-Symphony Player Co. v. Hackstadt, Ky., 206 S. W. 803.

been entered may purge himself of contempt for failure to comply therewith by showing his present inability, etc.-In re Myerson, U. S. D. C., 253 Fed. 510.

7. Insolvency.-To entitle trustee in bankruptcy to recover preference under Federal Bankruptcy Act, § 60b, trustee must show that at time of transfer bankrupt was "insolvent," property under fair valuation being insufficient to pay debts, also that payment operated as a preference, and creditor had reasonable cause so to believe.-McAleer v. People's Bank, Ala., 80 So. 94.

8. Preference.-Before recovery can be had by a trustee in bankruptcy under Bankruptcy Law, 60, subd. b, it must appear that person receiving a preference had a reasonable cause to believe, not only that the bankrupt was insolvent, but that he was receiving a preference. Williams v. Davidson, Wash., 176 Pac. 334.

9. Bills and Notes-Presentment.-The waiving of presentment for payment, protest, and notice does not increase the original liability of the indorser, but merely renders unnecessary the performance of these acts to fix such liability. State Nat. Bank of Ft. Worth v. Vickery, Tex., 206 S. W. 841.

10. Set-Off.-The maker of a negotiable instrument may plead a set-off against the payee, provided the instrument has not been negotiated to a holder in due course for value.-Hanson v. Drake, Wash., 176 Pac. 349.

11. Carriers of Goods - Bill of Lading.— Where general agent of railroad issued exchange bill of lading for a forged bill without ascertaining whether the goods had been received, the railroad is liable to innocent third party, who, in reliance on exchange bill issued by railroad, purchased exchange bill in good faith for value, without knowledge of circumstances under which it was issued.-Chas. W. Johnson Lumber Co. v. Great Northern Ry. Co., Wash., 176 Pac. 343.

13. Carriers Municipal Corporation.- The Legislature of a state may, unless restrained by the state Constitution, contract away its power to regulate the rates of fare of a street railroad company, either by an enactment of its own, or by delegating to the municipality the power to do so.-Columbus Ry., Power & Light Co. v. City of Columbus, Ohio, U. S. D. C., 253 Fed. 499.

14. Carriers of Live Stock-Waiver.-The provision of a valid interstate live stock shipment contract that suits to recover for injury or delay to shipments must be begun within 91 days thereafter cannot be waived by a carrier. Cudahy Packing Co. v. Missouri, K. & T. Ry. Co. of Texas, Tex., 206 S. W. 854.

15. Chattel Mortgages-Crops.-As a mortgage on crops to be grown does not attach until the crop is planted and such a mortgage does