Palmer v. Kelleher

Morton, J. If the plaintiffs’ scales, weights and measures, used in selling the merchandise sued for, were not adjusted, sealed and recorded according to the statute, the sales were illegal and this action cannot be maintained. Gen. Sts. c. 51, § 16. Smith v. Arnold, 106 Mass. 269. Sawyer v. Smith, 109 Mass. 220. By the agreed facts it appears that the plaintiffs are market-men and provision dealers, residing and doing business and having their shop in Newton. Most of their customers resided in Watertown, where was the principal part of their business. Their scales, weights and measures were never adjusted and sealed in Newton, but a part of them had been, before they bought them, adjusted and sealed in Watertown, and a part in Boston. Upon these facts we are of opinion that the plaintiffs cannot recover. The St. of 1870, e. 218, § 1, provides that “all persons using scales, weights, measures or milk-cans, for the purpose of selling any goods, wares, merchandise or other commodities, shall have them adjusted, sealed and recorded by the sealer of weights arid measures in the city or town in which they reside or have their usual place of business.” This stature required the plaintiffs to have their scales, weights and measures adjusted, sealed and recorded in Newton. The ground taken by them that “ their usual place of business,” within the meaning of the statute, was in Watertown, cannot prevail without a violation of the just rules of construction. The word “place” is often used in the- statutes to denote a city or town, but it is. also often used in a more restricted sense, to denote a specific place within a city or town at which a person dwells or transacts- business. In this latter sense 322 it is used in the expressions the “ usual place of business,” and “ places of business,” and “ usual place of abode,” found in the statutes fixing the venue of transitory actions, Gen. Sts. c. 123, §§ 1, 5; and of the trustee process, Gen. Sts. e. 142, § 4 ; in the provision for taxing partnership property, Gen. Sts. c. 11, § 15; and in the provision for serving writs, Gen. Sts. c. 123, § 25. Little v. Cambridge, 9 Cush. 298. Rhodes v. Salem Turnpike & Chelsea Bridge Co. 98 Mass. 95. Such is obviously the only possible construction where the statute speaks of the “ usual place of abode ” as the place where writs and notices may be served. We think the statute under consideration must receive the same construction ; and that the plaintiffs’ “ usual place of business ” was their shop in Newton. They transacted business in Water-town by driving from house to house and delivering goods, but they had no place of business in that town. This view is decisive against the plaintiffs, even if all their scales, weights and measures had been sealed in Watertown. The result is that the sales by the plaintiffs were illegal and they cannot recover. Judgment for the defendant.