"The court leaves that with the jury to de- [than the court, to say what weight should be termine from the evidence in the case." This was error, and the exception must be sustained. State v. Barr & Pianfetti, 78 Vt. 97, 62 Atl. 43. given it. Moreover, no question was made but that samples of the respondent's milk were taken on the days named, nor was it claimed that those samples were tampered with before they were examined by the chemist at the state laboratory. [8] The respondent requested the court to charge, in effect, that if the jury found that [10] The respondent requested the court to Soules & White conducted a place where but- charge the jury that if Murray put water inter was made, such as constituted a "cream- to the milk without the knowledge, wish, or ery, condensary or receiving station for consent of respondent, the respondent would milk," within the meaning of G. L. 5935, and not be liable. The court refused to so charge, the respondent believed that his milk "was and charged, in substance, that if the jury being separated to make butter," he would found that Murray was acting as employee or not be guilty of the offense charged, even agent of respondent in delivering the milk in though he diluted the milk with water; and question to the creamery, and he diluted such to the court's failure to so charge had an ex-milk while acting within the scope of his emception. He contends that the purpose of G. ployment, the respondent would be liable, alL. 5935, is "to supplant" G. L. 5907, where though the acts of Murray in diluting the milk is sold to creameries, cheese factories, milk were not authorized by respondent. To etc., in the absence of an agreement in writ- the failure of the court to charge as requesting that such milk shall be paid for on some ed, and to the charge as given, respondent basis other than the quality test; or, in oth- was allowed exceptions. The effect of reer words, if the price of milk sold to a cream-spondent's contention is that the commission ery is to be determined by the quality of the milk, it is not a violation of G. L. 5907, for the seller to water it. of the offense created by this statute depends upon the knowledge of the person accused that the milk sold was diluted, and therefore This claim is without merit. These stat- he is not liable for what his servant, who utes, viz., sections 5907 and 5935, are for man- was custodian of the milk, did to it, unbeifestly different purposes; the purpose of the known to him. Reasoning conversely, if former is to insure the buyer of milk, whoev-knowledge is not an element of the offense, er he may be, against a diluted or adulterat- it is immaterial who applied the water, or ed commodity, while the purpose of the latter when, and the bald question is: Did the reis to apprise the seller of milk to creamer- spondent sell milk diluted with water? ies, etc., of the quantity of milk or cream delivered by him "as determined by weight or measure," and the quality, as determined by certain tests, is to furnish a basis for the price of such milk in cases where a special contract between the seller and buyer does not exist. The former statute is aimed at the seller; the latter is aimed at the buyer, if a creamery, etc. We find nothing in the various legislative enactments which are embodied in these sections of the statute to indicate that the Legislature intended the provisions of section 5935 to modify or "supplant" the provisions of section 5907, and such is not their effect. Fraud and deceit not being an element of the offense charged, it is immaterial whether milk is sold by weight, measure, or quality. This statute was enacted, manifestly, as a means of protecting the public against the fraud and imposition of vendors of inferior and unwholesome milk, and should be given such interpretation, if possible, within the sound canons of construction, as will secure to the people the benefit intended by the General Assembly. The language of the statute does not in terms or by implication make "knowledge" an element of the offense thereby created, and therefore such offense belongs to that class in which knowledge, or guilty intent, is immaterial and need not be shown in order to justify a conviction. In such cases it is the act itself, not the intent, that determines the guilt; the actual harm to the public being the same in one case as in the other. State v. Gilmore, 80 Vt. 514, 68 Atl. 658, 16 L. R. A. (N. S.) 786, 13 Ann. Cas. 321; People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270; City of Paducah v. Jones et al., 126 Ky. 809, 104 S. W. 971, 31 Ky. Law Rep. 1203; Feeley v. United States, 236 Fed. 903, 150 C. C. A. 165. [9] The provisions of sections 5909 and 5910 were not followed when samples of respondent's milk were taken for examination. The respondent requested the court to charge the jury that such noncompliance must be taken by the jury as weakening the value of the tests as evidence, and had an exception to In the instant case the sale of the milk the failure of the court to so charge. The was not consummated until it was delivered request asked too much. It would have been at the creamery; down to that moment it error for the court to instruct the jury that belonged to the respondent, was in his custothey must take such failure as weakening the dy, in the eye of the law, and he was responvalue of the tests, etc. The evidence adduc-sible for its condition. If it was diluted when ed was competent, at least it came in with- delivered at the creamery, it is immaterial out objection, and it was for the jury, rather whether it was diluted by the respondent, or (115 A.) the person who did the milking, or the person its schedules in its offices as required by such who carried it to the creamery. statute held for the jury. Other exceptions were taken, but, as the questions raised by them are not likely to arise on a retrial, they are not considered. Judgment and sentence reversed, and cause remanded for a new trial. (95 Vt. 388) SIMPSON v. CENTRAL VERMONT RY. CO. (No. 324.) (Supreme Court of Vermont. Washington, Oct. 4, 1921.) 1. Carriers 12(1)-Schedules of rates must be filed in railroad offices. Under G. L. 5281, a railroad company must not only file its schedule of rates with the Public Service Commission, but must also file them in its offices, in order to establish the rates therein contained, and until both of these requirements are complied with, the schedules afford no protection to the company. 2. Carriers 400-Railroad bound by acceptance of agent of goods for transportation. Aside from schedules of rates provided for in G. L. 5281, a carrier was bound by the act of an agent in knowingly accepting trunks containing merchandise for transportation as baggage and placing them in the waiting room for the night with the expressed intent of checking them in the morning, such goods being burned during the night. 3. Carriers 408 (4)—Burden of proof on carrier to show compliance with statute in making schedules to protect it from liability for goods in waiting room lost by fire. In an action for loss by fire of goods left in a waiting room, the burden was on defendant to show full compliance with G. L. 5281, in order to make a schedule of rates specified therein available for its protection, though in sustaining this burden defendant was aided by a presumption that the statute had been fully complied with, arising from the fact that noncompliance was penalized under G. L. 5290; but this presumption was not conclusive, and the burden of proof remained on the defendant, and a question was for the jury, unless proof and inferences were all in its favor. 4. Evidence 87, 88, 89-When presumptions will determine controversy. A presumption, even when invoked by one who has the burden of proof, may determine the controversy; but one presumption, however, may be met or even overcome by another presumption, and when opposing presumptions arise from the evidence, the question is one of fact, and goes to the jury. 6. Appeal and error -774, 856(1)—Judgment affirmed on any legal ground shown by record. A judgment will be affirmed in the Supreme Court on any legal grounds shown by the record, whether briefed or not. 7. Carriers 400-Knowledge of contents of trunks held acquired by agent while acting within scope of employment. Where station agent went to plaintiff's tent at fairgrounds with an express package as agent of an express company, but at the very time he delivered the package made suggestions about getting trunks to the station, at which time he acquired knowledge that the trunks would contain merchandise, which he afterwards accepted as baggage, it must be held, that he acquired such knowledge while acting within the scope of his employment as defendant railroad's agent. 8. Appeal and error 1064(1), 1067—Omis sion in instruction held without error. In an action for loss of baggage, any error of the court in charging that, if defendant's agent, knowing that trunks contained merchandise, accepted them as baggage, the company would be bound, and in failing to charge that the knowledge of the agent must have been obtained while he was acting within the scope of his employment, was not harmful to the defendant, where it was apparent that the agent did acquire such knowledge while acting within the scope of his employment. 9. Principal and agent 178(1)—Information of agent imputed to principal. Where it clearly appears that information obtained by an agent outside his employment is actually in his mind at the time he performs the act in question, it will be imputed to and bind the principal, unless it is obtained under such circumstances as to make it the legal duty of the agent not to divulge it to the principal. 10. Carriers 400-Information gained by agent of carrier could not be forgotten when he accepted trunks as baggage. Where agent for railroad went to plaintiff's tent at fairground and told him that he should get his trunks ready and have them sent to the station, at which time the agent ascertained that the trunks contained merchandise, and the tion and were accepted as baggage by such trunks were shortly thereafter sent to the staagent, agent's knowledge acquired at fairground regarding the contents of the trunk was so recently obtained at the time of the acceptance of the trunks as baggage that it could not have been forgotten when he accepted the trunks, and his knowledge was imputed to his principal. Argued before WATSON, C. J., POWERS, | tified copies of its special passenger tariff, TAYLOR, and MILES, JJ., and FISH, No. 146-11, and a supplement thereto, and Superior Judge. Porter, Witters & Longmore, of St. Johnsbury, for plaintiff. J. W. Redmond, of Newport, and Wm. R. McFeeters, of St. Albans, for defendant. POWERS, J. The plaintiff was a faker at the Franklin county fair, held at Sheldon Junction in the fall of 1914. Her stock in trade consisted of cheap jewelry, canes, souvenirs, novelities, etc., and was transported from one fair to another in 9 large trunks and several express packages. The railroad station at Sheldon Junction is only a short distance from the fairground, and is operated jointly by the St. Johnsbury & Lake Champlain Railroad Company and the defendant, being in the charge at the time here material of Frank Belanger, as joint agent. He was also express agent, and probably telegraph operator. During the afternoon of September 4, the last day of the fair, Belanger went to the plaintiff's tent on the fairground to deliver to her an express package, and while there on that errand asked her when she was going away, and (as stated in the defendant's brief) "suggested that their goods should be packed and at the station that night to insure shipment in the morning." Later in the afternoon the goods were packed, and about 7 o'clock in the evening the 9 trunks and 11 packages were carted to the station. When the carter arrived there, he notified Belanger that he had brought "Simpson's stuff from the fairground," and was directed by him to leave it on the station platform. When the carter arrived with the second load, Belanger told Mr. Simpson, the plaintiff's husband and assistant, who came with it, to put the things on the platform, and that, after the trains had gone, they would put them in the waiting room-the only available place to house them. Simpson then purchased tickets of Belanger over the defendant's road to Northfield, Vt., his next stand, and after the departure of the last train, moved the trunks and packages into the station waiting room as directed. When this had been done, Simpson spoke to Belanger about checking the trunks to Northfield, but the latter replied that he could not stop to do it that night, as he had already worked over his lawful hours, but that the train did not leave until about 9 o'clock in the morning, and "we will have plenty of time to check them then." Accordingly, the trunks and packages were left in the station, where they burned up in a fire that destroyed the building before morning. This suit is brought to recover the value of the property so destroyed, and is based wholly upon the defendant's liability as a common carrier. rested. It then filed a motion for a verdict, which was overruled, and an exception saved. These "tariffs" were the "schedule of rates" specified in G. L. 5281, which requires a railroad company to "file with the Public Service Commission and keep on file in all railroad offices" schedules showing the rates charged for the transportation of persons or property over its lines, together with the charge for any services in connection with such transportation. This section also requires such company to post in its stations and offices notices that such schedules are on file therein, and may be seen on application. And the section further provides that the rates, tariffs, and charges "so scheduled and kept in such offices" shall not be increased except as therein specified. By G. L 5290, a penalty is provided for violations of these provisions. That these tariffis were duly filed with the Public Service Commission was not disputed; but there was no direct evidence that they were kept on file in the defendant's offices, or that the notices called for were posted as required. The plaintiff says that, without compliance with these requirements, the schedules are of no validity or effect. The defendant insists that the thing that gives them vitality is the filing of them with the Commission, and that the other provisions of the statute are directory, merely; and though a failure to comply with them or either of them might subject a railroad company to the penalty prescribed, the binding force of the schedules would be unaffected thereby. In support of its position, the defendant cites Berwind-White Coal Mining Co. v. Chicago & Erie R. Co., 235 U. S. 371, 35 Sup. Ct. 131, 59 L. Ed. 275, and other federal Supreme Court cases construing the Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.). That act requires an interstate carrier to file with the Interstate Commerce Commission, "and print and keep open to public inspection," schedules of rates and charges. It also provides that copies "shall be kept posted in two public and conspicuous places" in its stations and offices. Section 8569. The cases referred to hold that the posting of these copies is neither a step in the publication of the rate nor a condition precedent to its legality, but is a provision to take effect after the rate has been legally established. This holding does not go quite far enough to be decisive of the point here. It does not touch the requirement of the federal statute that the schedules shall be kept "open to public inspection"-which corresponds to the requirement of our statute (115 A.) railroad offices-and we are not advised that the Supreme Court has ever held that compliance with this provision is not essential to the validity of the rate. It was deemed of such importance in Kansas City Southern R. Co. v. Albers Commission Co., 223 U. S. 573, 32 Sup. Ct. 316, 56 L. Ed. 556, that it was proved; and in Texas & Pacific Ry. Co. v. Cisco Oil Mills, 204 U. S. 449, 27 Sup. Ct. 358, 51 L. Ed. 562, the court says that "The filing of the schedule with the Commission and the furnishing by the railroad company of copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force. * This language is adopted, almost literally, by Chief Justice Rugg in New York Central, etc., Co. v. York & Whitney Co., 230 Mass. 206, 119 N. E. 855. The cases cited by the defendant would be in point if the only question here was as to the effect of a failure to post the notices called for by our statute; but they shed little, if any, light upon the importance of that other requirement of our statute that the schedules shall be kept on file in the company's offices; and we shall get no help from that court on this question until they construe the provision of the federal act that the schedule shall be kept open to public inspection. [1] We think that a proper interpretation of G. L. 5281 requires us to hold that a railroad company must not only file its schedules with the Commission, but must also file them in its offices in order to establish the rates therein contained; and that, until both of these requirements are complied with, the schedules" afford no protection to the company. Otherwise the shipper would be without any feasible means of ascertaining the rate which the law required him to pay. To be sure, the records of the Commission would be open to him, and very likely the Legislature could lawfully leave him to the cold comfort of that situation; but we prefer to think that the Legislature intended to afford him a fair chance to ascertain the lawful rate at the point of shipment. This view is strengthened by the provision of the statute requiring the agent on duty "in the office" to render assistance in securing information from and interpreting the schedules. One [3-5] The burden of proof was on the defendant to show full compliance with the statute in order to make the schedules available for its protection. In sustaining this burden, the defendant was aided by a presumption that the statute had been fully complied with. This arose from the fact that noncompliance was penalized. G. L. 5290; Thayer v. Glynn, 93 Vt. 257, 106 Atl. 834. But this presumption, which is nothing more or less than the presumption of innocence, was not conclusive; the burden of proof remained on the defendant, and the question was for the jury, unless the proof and inferences were all its way. Barber v. Baily, 86 Vt. 219, 84 Atl. 608, 44 L. R. A. (N. S.) 98; County of Bennington v. Manchester, 87 Vt. 555, 90 Atl. 502. In many cases, a presumption, even when invoked by one who has the burden of proof, will determine the controversy; for our rule is that presumptions have the force of evidence. In re Cowdry's Will, 77 Vt. 359, 60 Atl. 141, 3 Ann. Cas. 70. And they stand until met or overcome. presumption, however, may be met or even overcome by another persumption. Hitt v. And when Carr (Ind. App.) 130 N. E. 1. opposing presumptions arise from the evidence, the question is one of fact, and goes to the jury. Turner v. Williams, 202 Mass. 500, 89 N. E. 110, 24 L. R. A. 1199, 132 Am. St. Rep. 511. In the case in hand, the proof and inferences were not all one way. The fact that the agent knowingly accepted the goods as baggage indicated, more or less strongly, that there was no lawful and binding regulation forbidding it. Here, again, the presumption of innocence arises; for, if the schedules were properly established, his act in so doing was punishable under the section of the statute referred to; and if they were not, his act was lawful. It has been frequently said by courts and text-writers that the death or divorce of one of the parties to a prior marriage may be presumed in order to support a second one. Some even say that it will be. That it may be is the law of this court. Greensborough v. Underhill, 12 Vt. 604. And when, in such cases, the presumption of the continuance of life is met by the presumption of innocence in the second marriage it is for the jury to say which shall prevail. 1 Jones, Ev. § 101. So here it was for the jury to weigh the pre [2] When the defendant rested, then, it sumptions arising from the evidence and dehad not gone far enough to meet the plain-termine the fact involved. The motion for tiff's case. For, the schedules aside, it was a verdict was properly overruled. bound by the act of Belanger in knowingly accepting these goods for transportation as baggage. Bergstrom v. Chicago, etc., Ry. Co., 134 Iowa, 223, 111 N. W. 818, 10 L. R. A. (N. S.) 1119, 13 Ann. Cas. 239; Southern Ry. Co. v. Dinkins & Davidson Hardware Co., 139 Ga. 332, 77 S. E. 147, 43 L. R. A. (N. S.) 806; Ferris v. Minneapolis & St. L. Ry. Co., [6] The defendant raised the same question in various other ways, but in each case it predicated its claim upon the conclusiveness of the schedules, and did not ask to go to the jury on the question of their legal establishment. So there was no error. That the point on which we turn the case was not made below is of no consequence 45, 186 Pac. 559; Harrington V. United States, 11 Wall. 356, 20 L. Ed. 167), unless it was obtained under such circumstances as to make it the legal duty of the agent not to divulge it to the principal (Snyder v. Partridge, Wittenbrock v. Parker, Thimsen v. Reigard, Harrington v. United States, above cited). 138 Am. St. Rep. 1074), nor would the plain- | Hess v. Conway, 92 Kan. 787, 142 Pac. 253, tiff's failure to present it here affect our 4 A. L. R. 1580; Thimsen v. Reigard, 95 Or. disposition of the case. Error must be made to appear; the judgment below was for the plaintiff, and it will be affirmed in this court on any legal grounds shown by the recordwhether briefed or not. Wood v. James, 93 Vt. 36, 106 Atl. 566. This holding makes it unnecessary to consider the other questions raised regarding the schedules. In the foregoing discussion, it will be observed, we assume the soundness of the defendant's claim as to the binding effect of the definition of baggage found in the schedules. The defendant excepted to that portion of the charge in which the jury was instructed that if Belanger, knowing that the trunks contained merchandise accepted them as baggage, the company would be boundclaiming that the charge should have been that Belanger's knowledge, in order to bind the company, must have been obtained while acting within the scope of his employment as the defendant's agent. [10] The plaintiff here was entitled to the benefit of all the information regarding this matter that Belanger acquired at the fairground, for it was so recently obtained that it simply could not have been forgotten when he accepted the trunks. McClelland v. Saul, 113 Iowa, 208, 84 N. W. 1034, 86 Am. St. Rep. 370; Chouteau v. Allen, 70 Mo. 290; Brothers v. Bank of Kaukauna, 84 Wis. 381, 54 N. W. 786, 36 Am. St. Rep. 932. Affirmed. (96 N. J. Law, 320) BASS v. BELLOFATTO. (Supreme Court of New Jersey. Nov. 8, 1921.) warranty properly rejected in absence of notice to seller. [7, 8] It is quite apparent that Belanger, when he went to the plaintiff's tent on the occasion above referred to, was the agent of the express company; but at the very time he delivered the package, he made the suggestion about getting the things to the sta-1. Sales 285(1)—Evidence as to breach of tion. This was an act in the defendant's behalf. The delivery of the package and the suggestion about the baggage were practically one act. They were so intimately connected, that there would be no practical way for the jury to distinguish what he observed when he delivered the package from what he observed when he made the suggestion-buyer was inferior, and not as ordered, was in other words, what he learned while acting as agent of the express company from what he learned while acting as agent of the defendant. So it does not appear that any harm resulted to the defendant from any shortage in this instruction. Under Sale of Goods Act, § 49, providing that the buyer's acceptance of goods shall not discharge the seller from liability for breach of warranty unless the buyer fails to notify the seller thereof within a reasonable time, evidence that building material sold furnished the properly rejected in the absence of proof of such notice. 2. Appeal and error 272(3)-Error in disregarding evidence not called to court's attention until after judgment not considered. In an action for the purchase price of building materials, an objection that the court disregarded the estimate on which the contract was based, so far as involved pencil figures which appeared in the margin of the estimate connecting it with the contract figures, will not be considered on appeal where such figures were first called to the court's attention after judgment had been rendered and appeal taken. Appeal from Circuit Court, Hudson County. [9] Moreover, the rule contended for by the defendant, though of general application, is subject to this limitation; where it clearly appears that the information obtained by an agent outside the employment is actually in his mind at the time he performs the act in question, it will be imputed to and bind the principal (Hart v. Farmers' & Mechanics' Bank, 33 Vt. 252; Pollman v. Curtice, 255 Fed. 628, 166 C. C. A. 662; Lundean v. Hamilton [Iowa] 159 N. W. 163; Snyder v. Partridge, 138 Ill. 173, 29 N. E. 851, 32 Am. St. Rep. 130; Wilson V. Minnesota, etc., Ass'n, 36 Minn. 112, 30 N. W. 401, 1 Am. St. Rep. 659; Constant v. University of Rochester, 111 N. Y. 604, 19 N. E. 631, 2 L. R. A. 734, 7 Am. St. Rep. 769; Wittenbrock v. Parker, 102 Cal. 93, 36 Pac. 374, 24 L. R. A. 197, 41 Am. St. Rep. 172; Fairfield Savings Bank v. Chase, 72 Me. 226, 39 Am. Rep. 319; Schwind v. Boyce, 94 Md. 510, 51 Atl. 45; spondent. Action by Samuel M. Bass against Rocco Bellofatto. Judgment for plaintiff, and defendant appeals. Affirmed. BLACK and KATZENBACH, JJ. Samuel W. Boardman, Jr., of Newark, for appellant. Philip J. Schotland, of Newark, for re |