(dissenting)—I am constrained to hold for the Department of Revenue, even though I believe its theory is hypertechnical and not in the spirit of the legislative intent when those acts were passed.
If you want milk delivered, you contact the dairy for delivery of 1 gallon a day. The milk comes in a plastic container; you place the empty container on your porch, and it will be replaced by a full container. If you do not put the empty container out, the failure to return it is noted by the driver; and on your monthly statement there will be an *596additional item of 35 cents for each container not returned.
The Department of Revenue contends each delivery by the dairy is a taxable retail sale, not only of the milk, but of the container. Thus, the dairy should pay a business and occupation tax (RCW 82.04) and a retail sales tax (RCW 82.08) on each container delivered, not just on those delivered but not returned.
RCW 82.08.030 contains exceptions from the retail sales tax; prior to 1974, it did not exclude: “Sales of returnable containers for beverages and foods, including but not limited to soft drinks, milk, beer, and mixers.” This case involves sales prior to 1974. RCW 82.04.040 defines “sales” as: “any transfer of the ownership of, title to, or possession of property for a valuable consideration . . .” This definition can be interpreted as any transfer of the: (a) ownership of, (b) title to, or (c) possession of property.
Thus, the transfer of possession of the container, full or empty, comes within this provision of the definition of a sale, i.e, the transfer of the possession of property. The remaining question is whether the transfer is for valuable consideration, which has been defined in Brace v. Superior Land Co., 65 Wash. 681, 689-90, 118 P. 910 (1911), citing 2 J. Pomeroy, Equity Jurisprudence § 747 (3d ed. 1905), as:
“Valuable consideration means and necessarily requires under every form and kind of purchase, something of actual value, capable, in estimation of the law, of pecuniary measurement—parting with money or money’s worth, or an actual change of the purchaser’s legal position for the worse.”
Stated differently:
Consideration . . .
An act or forebearance, or the promise thereof, which is offered by one party to an agreement, and accepted by the other as an inducement to that other’s act or promise. Poll.Contr. 91.
Black’s Law Dictionary 378-79 (4th ed. rev. 1968).
Valuable. Of financial or market value; commanding or *597worth a good price; of considerable worth in any respect; estimable. Webster, Diet.
Black’s Law Dictionary 1720 (4th ed. rev. 1968).
Transferred into the facts of this case, the dairy agrees to deliver milk to its customers in exchange for an agreed price per gallon, plus the container or the value of the container, ie., 35 cents. Thus, the container or its value, in addition to the cost of milk per gallon, is valuable consideration, i.e., money or money’s worth. There being a “sale” for valuable consideration, each exchange is a taxable retail sale.
The retail sales tax is imposed on each retail sale, collected from the purchaser and forwarded to the state by the seller, RCW 82.08.020; whether collected or not, the seller is personally liable for the remittance, RCW 82.08.050. The retail sales act, RCW 82.08, does not define “sales,” but RCW 82.08.010 (4) states: “The meaning attributed in chapter 82.04 RCW to the terms ‘. . . sale,’ . . . shall apply equally to the provisions of this chapter.” Thus, the rationale used in defining these transactions as sales within RCW 82.04 applies to retail sales.
I would reverse.
Petition for rehearing denied January 15,1976.
Review denied by Supreme Court March 9,1976.