QUESTION OF RETURN OF BOTTLES

Dominion, Volume 30, Issue 45, 17 November 1936, Page 16

QUESTION OF RETURN OF BOTTLES

Action Against Dealer FOUR COMPANIES SEEK INJUNCTION What are the rights of the purchaser of bottled liquor insofar as the bottles are concerned? This is a question which the Chief Justice (Sir Michael Myers) has been asked to decide in a case which opened in the Supreme Court, Wellington, yesterday, in which a restraining injunction is sought by four companies carrying on business as brewers and bottlers, against a Wellington bottle-dealer. It was alleged that bottles imprinted with the name of the brewers or bottlers had not been returned and had been wrongfully converted to the dealer’s use. The submission was made that the bottles are always the property of the original owners, whose names are stamped on the glass. The case before the court, in which New Zealand Breweries, Ltd., are asking for an injunction against Agnes Callingham, bottle-dealer, is being heard as a test case, and the result will be applied to the other three cases, plaintiffs in which are E. T. Taylor and Co.; Ltd., the Tui Bottling Co., and J. R. Mcllraith and Co., Ltd. Plaintiff companies are asking for an injunction to restrain defendant, her servants and agents from continuing or repeating the alleged wrongful conversion of bottles. Mr. H. J. V. James is representing the four plaintiff companies, and Mr. J. B. Yaldwyu, with him Mr. M. G. Neal, are appearing for defendant. All bottles used by plaintiff in the sale of liquor were the sole property of plaintiff and were marked to indicate that, it was set out in the statement of claim. Plaintiff company when it sold in bottles fermented liquor manufactured by the company, did not and never had sold the bottles. These bottles, notwithstanding their delivery to purchasers of liquor, always remained the property of plaintiff, and when the contents were once used all the bottles were returnable to plaintiff, or its authorised agents. It had been discovered by plaintiff that defendant was dealing in bottles, the property of plaintiff. Defendant was requested by plaintiff company to deliver all plaintiff’s bottles, which were in the possession or under the control of defendant, and defendant refused to comply with the request. Further, plaintiff requested defendant to cease dealing in bottles which were the property of plaintiff and to give to plaintiff an unqualified assurance that she would abide by that request; but this she refused to do. It was claimed that by reason of the unlawful acts defendant had converted to her own use bottles which were the property of plaintiff, and by •reason of those acts defendant threatened and intended to continue to repeat the wrongful acts complained of. Allegations Denied. The defence was a fairly general denial of the allegations in the statement of claim. Defendant contended that all the bottles were not the property of plaintiff. She said she was, and always had been, willing to deliver to plaintiff all bottles marked with the company’s name on being paid a reasonable sum for the trouble and expense of collecting them and for her care and services in keeping them. All bottles received by defendant and having marked on them the name of plaintiff had been handed by her either to plaintiff or to authorised agents of plaintiff, or to other dealers for transmission to authorised agents. No bottles marked with the company’s name had been used by defendant, filled with any liquid, or detained by her for any unreasonable time, nor had defendant done anything necessarily inconsistent with the ownership of the bottles by plaintiff. Mr. James said that because plaintiffs now found that they could not get sufficient of their bottles back to conduct their ordinary trade, the actions were of considerable importance to them. New Zealand Breweries, Ltd., sold all its beer and other fermented liquors in bottles bearing the words “This bottle is the property of New Zealand Breweries, Ltd.” In some cases the letters “N.Z.” appeared after the word “Ltd.,” and in other cases “Wellington” appeared, but all contained the words, "This bottle is the pro-perty-of New Zealand Breweries, Ltd.” Continuing bis submissions, Mr. James said in addition to that notice on the bottle, without exception every purchaser of beer from New Zealand Breweries received a delivery docket or an invoice making it clear, in express words, that the bottles were not sold. That applied whether the sale . was to wholesale merchants or a private person and whether the sale was for credit or cash. Incentive to Return Bottles. New Zealand Breweries and other brewers and bottlers had appointed W. Hildreth and Sons, New Zealand Bottle Exchange, Ltd., as their sole agents for the collection, storage and return of all empty bottles belonging to them. To persons who brought them in—bottle gatherers, hawkers and private persons—the exchange paid 1/3 a dozen, but that was not paid by way of purchase money. This payment was made as a matter of policy to ensure that bottles would be returned, because otherwise there was no incentive for people to do that. That had been the practice in nearly all bottle cases, and it had been held by all judges that that did not make the transaction a sale.

Questioned >by his Honour, Mr. Janies .said that everybody in the trade and every hawker in Wellington was aware of the position. Bottles were collected by hawkers and gatherers from private places and elsewhere, and then taken to the exchange. It .sorted and packed the bottles and returned them to their owners, receiving 1/6 or 1/7, plus the cost of packing and freighting. Hildreth and Sons had done a great deal of advertising to make clear the true facts as to ownership of the bottles and had issued warnings. To his Honour, counsel said 1/3 was paid to bottle gatherers and 1/- to private individuals. His Honour: Does eacli bottle gatherer have an initial arrangement with Hildreth, or is it generally known and recognised that any person can gather the bottles and take them along to Hildreth and get 1/3 for them. Mr. James said it was generally recognised that bottle gatherers could take bottles to Hildreth and Sons. Actually, however, no payment need be made, but that was made as fin incentive to people to return the bottles. Defendant Warned. Defendant admitted she dealt in I bottles, continued Mr. James. She I paid 1/3 to hawkers and 1/- to private individuals. About May, 1936, it was found that defendant was dealing in I these bottles. Hildreth called on Mr.

Callingham, who was manager for his wife, and warned him against carrying on these dealings. Callingham replied that he could get 1/6 for the bottles, and he would not deliver to Hildreth or anyone else unless he could get that sum. In August the quantity of empty bottles fell below normal, 'and there was a serious shortage. Callingham was again warned against dealing in the bottles and delivery was demanded, but refused. The following day a written demand was served on defendant bv New Zealand Breweries Ltd. “Ingenious Expedient.” It was sufficient to prove that defendant was retaining the bottles, but more than that could be proved; it.could be shown that defendant was dealing in the bottles. Hildreth had always believed that Callingham dealt in these bottles and had suspected that they were being shipped to Auckland, He therefore kept a watch on the wharf, and noticed 31 sacks of bottles consigned to Clarke Bros. “Your Honour might think it an ingenious expedient,” said counsel, explaining that Hildreth had anticipated that if he were also to ship some bottles they might become mixed with others consigned from Wellington. Hildreth shipped 12 sacks of bottles to the Auckland Bottle Company, and as he had thought might happen, they became mixed and some shipped by Callingham went to the Auckland Bottle Company by mistake. Mr. Yaldwyu (opening his case) : The onus of proving conversion lies on plaintiff, and I submit plaintiff has not proved any conversion; I submit therefore that plaintiff must be nonsuited. His Honour: A nonsuit is not granted in a case of this kind. Mr. Yaldwyu: I submit that it is within your Honour’s power to nonsuit. His Honour: I don’t intend to do it. I want to hear what there is to hear. Proceeding with the defence, Mr. Yaldwyn said defendant was one of the intermediaries in what might lie called the line of return of the bottles from the consumer to the brewery. It was perhaps a matter for comment that defendant was a business competitor with Hildreth and Sons. At one time Hildreth and Sons had a monopoly of the bottle trade in Wellington, but they now had two competitors. The brewery companies all took action at exactly the same time. The defence was based on three grounds. Firstly, plaintiff had estopped by its conduct by contending that all bottles bearing its name were the sole property of plaintiff. The second ground was that plaintiff had not discharged the onus of proof that it had the possession or the right to possession of the bottles at the date of the alleged conversion. The third ground was that even if plaintiff was not estopped from asserting its own issue of. these bottles it had bailed the bottles to purchasers thereby creating in these purchasers a special interest which was assignable both by virtue of the principles of common law and by implication of the express terms of the bailment. “Inconspicuous Statement.” “The statement on the bottle is not sufficient to apprise purchasers of the beer that they are not obtaining the property in the bottle.” said Mr. Yaldwyn. “The statement is comparatively indistinct; it is inconspicuous. Further, the attention of purchasers is not directed to the notice. In a great many cases the practice of the barman is to hand over the bottles already wrapped. The statement is ambiguous; it is a statement of present fact, and the purchaser may well consider it to be in the nature of an advertisement and a statement which ceases to be true when he purchases the bottle.” The case will be continued this morning.