Partridge v. Doty

The use by defendant of plaintiffs’ milk bottles, stamped with plaintiffs’ trade-marks thereon, without plaintiffs’ permission, subjects defendant to a penalty of $100, to be forfeited to each of the plaintiffs, under the provisions of section 28 of chapter 376 of the Laws of 1896. Possession of such milk bottles, without the consent of the plaintiffs, is made presumptive evidence of such illegal use.

The trial court dismissed plaintiffs’ complaints upon the ground that the plaintiffs had failed to prove that the contents of the bottles found in the possession of defendant was a beverage. There was no evidence offered upon the trial that the possession of the bottles by the defendant was without the consent of the plaintiffs. The plaintiffs failed to prove the essential element of their causes of action. The judgments dismissing the complaints were right, because of this fatal defect in plaintiffs’ proofs.

The judgments must be affirmed, with costs, notwithstanding the erroneous grounds stated by the trial court as a reason for the judgments rendered.