#### PEOPLE *v.*BERGER.

1. Eood — Misbranding—Bole Sale.

The sale of food items in hulk form and the subsequent packaging thereof for the convenience of the purchaser is not a sale in -package form within the meaning of the statute provid- ' ing that a’ food item sold in package form shall be deemed ■ misbranded if the “container does not bear the true net weight, excluding the wrapper or container, whieh shall be stated in terms of pounds, ounces and grains, or pounds and decimals or fractions thereof” (CL 1948, § 289.83a, as amended by PA 1963, No 232). ' '

2. Same-tMisbranding — Bulk Sale.

The packaging provisions of the statute relating to the misbranding of foods have no application to a sale in bulk of an -unpaekaged item, and the division of the item into packages after sale, sinee the subsequent packaging does not convert the sale into a package sale within the meaning of the statute (CL 1948, § 289.83a, as amended by PA 1963, No 232).

3. Same — Misbranding—Installment Payment — Bulk Sale.

The installment payment of the total purchase price for food purchased in bulk has no effect on the nature of the sale, and does not convert a single sale into a series of sales.

4. Same — Misbranding—Bulk Sale.

Defendant’s conviction for selling misbranded food in package form *held,*error, where based upon defendant’s sale, in bulk, of a large volume of food items, and the subsequent packaging thereof for the convenience of the customer who paid the purchase priee in installments, sinee'the subsequent packaging of such food for the convenience of the customer did not convert the bulk ‘ sale into a sale in paekage form, and installment payment of the total purchase priee did not convert the sale into a series of sales (CL 1948, §§ 289.81, 2-89.83a, ■■ as-aménded by PA 1963, No 232).

References for Points in Headnotes

[1 — 4] 56 Am Jur, Weights, Measures, and Labels §§ 66, 82.

*696Appeal from Recorder’s Court of Detroit; Gillis (Joseph. A.), J.

Submitted Division 1 April 3,1967, at Detroit.

(Docket No. 779.)

Decided October 16, 1967.

Julius Berger was convicted of selling misbranded food.

Reversed.

*Frank J. Kelley,*Attorney General, *Robert A. Derengoski,*Solicitor General, *Samuel II. Olsen,*Prosecuting Attorney, *Samuel J. Toruna,*Chief Appellate Lawyer, and *Richard J. Padsieski,*Assistant Prosecuting Attorney, for the people.

*Gerald L. Portney,*for defendant.

T. G. Kavanagh, P. J.

Defendant, doing business as Warren Freezer Food Company is engaged in selling food in large quantities to consumers. In October, 1963, one Vernon Pontius agreed to purchase from defendant a large volume of food items. Since vendee did not have a freezer, defendant rented him a unit with an option to purchase. Because the rented freezer was not large enough to hold the entire order, the parties agreed that the items would be stored by defendant and the vendee was to pick up a part of the order each week. The vendee was not able to pay the total purchase price, so he signed a note for the total amount and agreed to pay weekly installments when he picked up his order. As the vendee made his payments, defendant transmitted them to the lending institution to whom the note had been discounted.

The various items purchased were cut into portions suitable for the vendee’s use and each portion was, after the purchase, separately wrapped but not marked as to weight or labeled. When delivery *697was desired by tbe vendee, tbe small packages were pnt into cardboard boxes on the exterior of wbicb were labeled tbe gross and net weight of tbe total contents as well as defendant’s name and place of business. .

The people maintain that this constituted misbranding under tbe provisions of CL 1948, § 289.83a, as amended by PA 1963, No 232 (Stat Ann 1965 Cum Supp § 12.874) wbicb reads in pertinent part:

> “An article shall be deemed to be misbranded within tbe meaning of this act: * * *

> “(5) *If in pacJcage form*every package, box * * * or other container does not bear tbe true net weight, excluding tbe wrapper or container, wbicb shall be stated in terms of pounds, ounces and grains, or pounds and decimals or fractions thereof” (emphasis added),

and made tbe defendant guilty of violating section 1 of tbe act, being CL 1948, § 289.81 (Stat Ann 1958 Rev § 12.871), by having in bis possession or offering for sale a misbranded article of food. Tbe trial court so found. We do not agree.

Tbe sale of tbe food here is not properly regarded as “in package form.” Tbe sale was made of food items in bulk form and tbe packaging after tbe sale was simply for tbe convenience of tbe purchaser.

There was no claim here that tbe purchaser did not get the proper bulk weight purchased. Tbe complaint was that tbe packages were improperly or insufficiently marked.

We bold that thé packaging provisions of this statute have no application to a sale in bulk of an unpackaged item, and tbe division of tbe item into packages after sale does not convert tbe sale into a package sale. Likewise we bold that tbe installment payment of the total purchase price has no *698effect on the nature of the sale so as to convert a single sale- into a series of sales.

Reversed.

Levin and Vanpeb Wal, JJ., concurred. ■