Enno-Sander Mineral Water Co. v. Fishman

• Decision Date: 22 October 1907
• Citation: 127 Mo. App. 207,104 S.W. 1156
• Parties: ENNO-SANDER MINERAL WATER CO. v. FISHMAN et al.
• Court: Missouri Court of Appeals

104 S.W. 1156

127 Mo. A. 207

ENNO-SANDER MINERAL WATER CO. v. FISHMAN et al.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

1. ABANDONMENT — RIGHT OF PROPERTY — ACTS OF OWNER.

The custom of a manufacturer of mineral and seltzer waters of purchasing its own second-hand bottles from bottle dealers who had gathered castaway bottles from purchasers of the mineral waters and others who had come into possession of the same was a recognition by the manufacturer of the existence of some right in the bottle dealers regarding the castaway bottles, and tended to show an abandonment by the manufacturer thereof.

2. APPEAL — HARMLESS ERROR — INSTRUCTIONS.

Where, in replevin for the recovery of certain bottles, the property was taken out of defendants' possession under the writ and turned over to plaintiff, an instruction directing the jury to "fix the value of the bottles or defendants' interest in them" in case a verdict was returned for defendants was not prejudicial to plaintiff by reason of the words "or defendants' interest," where the evidence showed the title to be in defendants.

Appeal from St. Louis Circuit Court; Jesse A. McDonald, Judge.

Replevin by the Enno-Sander Mineral Water Company against Jacob Fishman and others. From a judgment setting aside a verdict for defendants, defendants appeal. Reversed and remanded.

F. A. Wind, for appellants. Rassieur, Schnurmacher & Rassieur, for respondent.

GOODE, J.

This is an action of replevin, the property involved being 65 siphon bottles used for bottling seltzer water. Respondent is a concern engaged in St. Louis in the sale of seltzer and mineral waters, and appellants are copartners doing business under the style of the "Western Bottle Company." The real business of the appellants, as we gather from the evidence, is buying and selling second-hand bottles. The custom of business of the plaintiff company, when it sold seltzer water, was not to sell the bottles, but to require them to be returned. These bottles were worth from 50 to 60 cents each. Sometimes a deposit was exacted of a purchaser of bottles of seltzer equal to the value of the bottles, so that in case they were not returned the plaintiff would not lose their value; and there is evidence going to show that, when seltzer was sold without a deposit being required of the value of the bottles containing it, their value was collected from the buyer in case they were not returned. That is to say, sometimes the respondent required a deposit and sometimes it did not, and in the latter instances, if the bottles never were returned, their value was collected of the customer. There is also testimony that respondent purchased at 10 cents each such second-hand bottles as had not been returned to it from any person into whose hands they happened to come. Respondent not only sold its waters in St. Louis, but in other cities and towns. It had a great deal of difficulty in collecting the bottles sent out to customers on sales of seltzer and other waters, and several expedients were adopted to save the loss. Appellants offered to prove, also, that respondent belonged to an association of companies engaged in similar business, called the "Missouri Bottlers' Association," the purpose of which organization was to recover the second-hand bottles of the respective companies, and that one A. Lewis was appointed manager of the association to buy back for the different companies such of their bottles as were not returned by customers, but passed, in one way or another, into the possession of second-hand dealers. This offer of evidence was excluded, but seems to have been treated in an instruction. The court instructed the jury, at respondent's request, that if they found the siphon bottles mentioned in the evidence (i. e., the 65 involved in the suit) were originally purchased by respondent from manufacturers, and were used by it in its business in the sale and distribution of mineral waters, and had not been sold, traded, or given away, it was still the owner of the bottles, and was entitled to recover them from the appellants if, at the date of the institution of the suit, they were in appellants' possession; that though the jury believed respondent was a member of an association of mineral water dealers which employed an agent to collect and recover the bottles of its members, and that said agent did from time to time pay, or promise to pay, to second-hand dealers, a stipulated price for the return of bottles and siphons, this course of business did not create any interest in appellants in and to the siphons in controversy; that the finder of lost property, or the purchaser of property that was stolen, does not acquire title to such property as against the true owner, even though h...