St. Louis Dairy Co. v. Northwestern Bottle Co.

• Citation: 204 S.W. 281
• Decision Date: 04 June 1918
• Docket Number: No. 14907.,14907.
• Parties: ST. LOUIS DAIRY CO. v. NORTHWESTERN BOTTLE CO.
• Court: Court of Appeal of Missouri (US)

204 S.W. 281

ST. LOUIS DAIRY CO. v. NORTHWESTERN BOTTLE CO.

No. 14907.

St. Louis Court of Appeals. Missouri.

Argued and Submitted May 9, 1918.

Opinion Filed June 4, 1918.

Rehearing Denied June 19, 1918.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

"Not to be officially published."

Action in replevin by the St. Louis Dairy Company, a corporation, against the Northwestern Bottle Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Jamison & Thomas, of St. Louis, for appellant. Phillips W. Moss and J. B. Denvir, both of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff instituted a replevin suit before a justice of the peace for a number of milk bottles and on a hearing the justice found in favor of plaintiff and against the defendant, that the plaintiff was entitled to the right of possession of the milk bottles in question and $1 damages. The case was appealed to the circuit court in due course where, upon a trial de novo before the court and jury, judgment resulted in favor of plaintiff for possession of the bottles in question and $50 damages. A remittitur of $49 of the damages assessed by the jury having been made by plaintiff the court overruled defendant's motion for new trial. Defendant thereupon brought this appeal.

It appears from the record that the St. Louis Dairy Company, plaintiff herein, is a Missouri corporation engaged in the sale of dairy products both wholesale and retail, in the city of St. Louis; that in delivering milk to the family trade it is delivered in bottles; that the drivers of the various wagons would deliver the milk to the kitchen of the customer and when making his delivery the following day would pick up and return the bottle in which the milk of the previous day had been delivered; that the bottles were simply used as a means of delivery but that no charge for the bottles was ever made against the customer; that milk in bottles was also delivered to the various groceries throughout the city and no charge was made for the bottles. Milk that was sold to restaurants and others who bought in wholesale quantities was not delivered in bottles but was delivered in cans. Bottles which were used were all branded with the name and address of the company.

It appears that this method or system of delivering milk in bottles is universally employed by the large dairies of the city of St. Louis, Missouri; that a considerable per cent. of the milk bottles used in this manner are not returned; that in order to overcome the loss entailed upon the various dairy companies by reason of the non-return of the bottles, and to devise a practical means of getting as many as possible of these bottles returned, a number of dairy companies had joined forces and each taken shares of stock in the Missouri Bottlers' Association, which corporation was formed for the purpose of carrying on what might be termed a bottle exchange. The plan upon which the association carried on its work was to offer a reward of a certain number of cents per dozen for various kinds of branded bottles, including soda water bottles, seltzer bottles, as also milk bottles. In this way many thousand dozens of bottles were turned in each month to the Missouri Bottlers' Association, or the bottle exchange, by the various secondhand dealers and junk men who gathered them in various portions of the city in their customary round of business. The bottles so obtained were sorted at the bottle exchange and washed and then taken back to the companies whose brand or name was blown in the bottle, the company paying a definite price per dozen for the return, a price which was supposed to be sufficient to pay the expenses and upkeep of the association.

The record discloses that along in 1908, the Missouri Bottlers' Association had gotten out some cards on which the announcement appeared that "We buy branded bottles." These cards, however, were, a short time after their issuance, recalled because they had been issued by the manager of the association without the sanction of the Board of Directors, the manager of the Missouri Bottlers' Association testifying to the effect that these cards were recalled the same month that they were issued. The manager further testified that ever since the latter part of 1908, the association had issued cards on which appeared the statement that they gave a "reward" for the return of bottles to the association.

The defendant, Northwestern Bottle Company, is a corporation which buys and sells all kinds of bottles, new as well as second-hand, and the defendant obtained its second-hand bottles from peddlers and junk dealers, who gather them up from place to place each day, getting some of them out of ash pits, while others were found in alleys where people had thrown them.

The president of the defendant company testified that the bottles which they purchased from the peddlers and junk dealers in the manner outlined above, were considered by defendant as its own property and that in disposing of them to) the Missouri Bottlers' Association, they had always understood that the association was buying back the bottles and not paying a "reward" for them, He further testified that the defendant "would sell milk bottles to everybody."

In 1912, at the time the original suit in replevin was instituted, the Missouri Bottlers' Association was buying, or giving a reward for the return of milk bottles, at a price amounting to seven cents per dozen. The defendant company, who had on hand some 2300 or more milk bottles, branded with the name of the plaintiff company, refused to sell for, or return for the reward of, seven cents per dozen, these said milk bottles, but demanded ten cents per dozen. It was under these circumstances that the plaintiff brought the instant suit for replevin.

There was testimony that the defendant had, within the year or two prior to the bringing of this suit, delivered bottles to the Missouri Bottlers' Association. And there was testimony adduced by he plaintiff that no bottles had been delivered to the said association by the defendant within that period of time or for about two years prior thereto.

It is uncontradicted that prior to the filing of this suit in the justice court, neither the plaintiff nor the Missouri Bottlers' Association tendered the defendant any sum either as an offer to purchase or as a reward for the return of the bottles in question.

The record discloses that during the progress of the trial the defendant made a formal tender offering to prove that in 1908, the plaintiff had instituted a replevin suit against this defendant, wherein plaintiff replevied a number of bottles branded with its name, and that in such suit the same defenses were presented by the defense as in the instant case, and judgment was rendered in such former suit before the justice in favor of the defendant from which no appeal was taken. This offer of proof was made by learned counsel for defendant on the theory that this former suit, though it did not involve the same bottles in controversy in the present case, yet was res adjudicata. The tender to produce the testimony thus offered was refused by the court, to which action of the court the...