The herald., 1897-10-10
A CURIOUS POINT
What Makes an Assessment Of Claim
Valid

The very mild beverage known as
ginger ale is rot of such exhilarating
character as to set people by the ears,
but the exception that proves the rule
has cropped up in court.
| Upon the trial of the case Of Edward
Sachs VS. Roland p. Bishop, ct al, it was
shown that the Sachs Pruden Manufac-
| turing company of Dayton. O.. sold and
delivered to defendants. at their request,
a certain car of ginger ale of the value of
$685. 40. At the time of the purchase by
defendants it was verbally agreed that
defendants should have the exclusive
right to sell such brand of ginger ale in
Southern California. After the goods
were shipped the defendants insisted
upon a written contract in relation to
the exclusive agency. the right to which
was not disputed by the Sachs-Pruden
company, but they advised defendants
that they had selling agent for the Pa
cific coast with whom they would have
to confer in relation to certain adver-
tising stipuations before such written
contract could be executed. Defendants
thereupon, assuming that such admis-
sion as to having a selling agent upon
the Pacific coast was tantamount to
say ms tHdl tIty Hdu HOt the
to grant the exclusive privilege agreed
to, rescinded the contract of purchase
and s.otitied the corporation that the
goods were held subject to its order,
and refused to pay for the ginger ale
The plaintiff thereupon brought suit,
the claim having been assigned to him
by the eastern company, but a curious
point was raised by the defense deny
ing the assignment.
Yesterday Judge Allen handed down
an opinion in which he holds that the
defendants possessed no right to re-
scnd the contract and that there has
been no violation of the verbal contract
upon the part of the Sachs -Pruden COM
pany, and that defendants are liable to
the Sachs-Pruden company for the value
of such merchandise.
The difficulty presented. however, In
this case is that the assignment having
been denied, the plaintiff had to show
such assignment
After examining into the code pro-
visions, Judge Allen says: 1T must fol-
low, therefore, that the attempt of the
general manager of a corporation to as
sign and transfer to himself, without ex-
press authority from his prin cipal the
property of the corporation is a fraud
against the coporation; and authorities
are numerous to the effect that contracts
where an agent seeks to convey to him
self property Of his principal are pre-.
sumably fraudulent. There has been no
testimony offered in this case which
tends to show that the corporation had
notice of this assignment, or that the di-
rectors authorized the same; the only
testimony being that this general man
ager, who had authority to sell the prop
erty of the corporation to other people,
undertook to sell to himself. Such a
transaction being presumably fraudu-
lent, it was incumbent upon the plain
tiff if he desired the benefit of the trans
action to show that he acted with the
knowledge and authority of his benefi-
ciary, and without the use of any infu-
ence on his part. With this view it fol-
lows that plaintiff has failed to establish
an assignment to him of the cause of
action set out in the complaint and of his
right to maintain the action.
Findings and judgment are therefore
ordered for the defendant in accordance
herewith"