On appeal from the Supreme Court, whose opinion is reported in 123 N.J.L. 572.
For the plaintiff-appellant, Melosh, Morten & Melosh (Louis G. Morten, of counsel).
For the defendant-respondent, Winne & Banta (John A. Christie, of counsel).
The opinion of the court was delivered by
PORTER, J. This suit is in replevin to recover possession of certain milk bottles and boxes. The writ was sued out in the District Court of the First Judicial District of Bergen county. Upon motion of respondent the court struck the state of demand. An appeal from that determination to the Supreme Court resulted in an affirmance from which comes this appeal.
It appears that the milk bottles and boxes in question were the property of Sisco Dairy Co. and were used by it in its business in the sale and delivery of milk. The respondent was engaged in the gathering up from the public generally of milk bottles wherever found for the purpose of washing, crating, delivering to and exchanging with the owners thereof. It was under agreement to render this service to Sisco Dairy Co. for an agreed sum per bottle and box as compensation. On January 5th, 1938, Sisco Dairy Co. notified it in writing that it would not accept any more bottles from it but advised it to turn over any it had or may later acquire to the Milk Bottlers Association.
It further appears that in accordance with this instruction, respondent did not return any more of the bottles to the Sisco Dairy Co. but held them in its possession for the Milk Bottlers Association. This association did not at any time offer to secure the bottles and boxes by the payment of the compensation for services agreed to be paid by the Sisco Dairy Co.
On July 20th, 1938, the writ of replevin was issued out of the District Court and a state of demand was filed with the writ. This action was not brought by the Sisco Dairy Co. but by appellant as "agent for Sisco Dairy Co." Neither the writ nor the state of demand alleged that the right of possession was in the appellant but states that the goods are the property of Sisco Dairy Co. to whom delivery was refused by respondent although appellant had made demand for the same.
The appellant clearly showed no interest in the goods nor any right to possession to them.
In this situation we think that the action of the trial court in quashing the writ and dismissing the state of demand was proper and consequently rightly affirmed by the Supreme Court. A motion was made for permission to amend the writ and state of demand which was denied. We think under the facts and circumstances rightly so. In any event it was a matter in the sound discretion of the trial court and we find no abuse of that discretion. King v. Steglitz, 111 N.J.L. 11.
The suit was that of appellant individually, notwithstanding the use of the words "Agent for Sisco Dairy Co." They were ...