Southern Glass Co. v. Beverly Dairies, Ltd.

SHINN, J.,

pro

tem.

In this action for the recovery of rent for the use of milk bottles or the reasonable value of their use the defendants had judgment of nonsuit and the plaintiff appeals. The complaint is in three counts, the first

[453]

alleging ownership of an unstated number of milk bottles and an agreement to rent the same to the defendants at the rate of $750 per month, the second cause of action alleging their rental for the reasonable value thereof, and the third cause of action being for the recovery of the value of the use of the bottles; the prayer of the complaint was for $3,146.75. The answers of the defendants denied all of the allegations of the complaint and set up certain affirmative defenses. In an attempt to prove ownership of the property plaintiff introduced in evidence, without objection, a judgment in the case of

Southern Glass Company, a Corporation,

v.

Dairy Service Co., Ltd., a Corporation,

by which it was decreed that Southern Glass Company was the owner of the milk bottle brand, consisting of the initials “NIP” for use on milk bottles. Plaintiff also offered in evidence a statement of William H. Kemps, president of defendant Beverly Dairies, Ltd., made at the time of the taking of the deposition of himself and B. A. Froning, a bookkeeper of said defendant, upon which occasion Mr. Kemps, in referring to milk bottles delivered to his company, stated, “I think you may assume that they were N M P bottles.” The plaintiff then introduced in evidence the deposition of Froning, from which it appeared that Beverly Dairies, Ltd., received from Los Angeles Bottle Exchange, its codefendant, between June 1 and October 10, 1931, 154,296 milk bottles, of which 30,960 were received in June, 65,736 in July, 12,312 in August, 34,632 in September, and 10,656 in October. For the delivery of these bottles Beverly Dairies, Ltd., paid to Los Angeles Bottle Exchange cash in a total sum of $628.41. During that period Beverly Dairies, Ltd., delivered to Los Angeles Bottle Exchange 109,224 milk bottles of other brands. The Bottle Exchange charged to the Dairy Company, for bottles delivered to the latter, part of the time two cents and part of the time three cents per bottle. It credited to the Dairy Company bottles received from the latter at the rate of two or three cents per bottle. The total charges against the Dairy Company amounted to $3,129.57. The account was balanced by the cash payments made by the Dairy Company and credits for bottles delivered to the Bottle Exchange Company.