Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1905-06-17


authorized or ratified by the plaintiff
they would not bind it or deprive 1t
of its property. Between the various
objections sustained enough evidence
was admitted to show that Shape, who
was a young man had been sent out
the year before by the travelling de-
partment of the plaintiff to solicit
orders for beer. Attached to the
deposition of VIM. C. Mueller. cores
pondent for the SchlitZ Brewing Com
pany is copy of a letter from plain
tiff to Shane in which it was stated
that in answer to his telegram they
had wired him to employ good COM
mercial attorney and have him reple-
win their cooperage, and stating, 'The
attorney perhaps does not know that
cOOperage is never sold and always
remains our property, and for this
reason any one who attaches same
has no right" This letter is dated
June 80, and in answer defendant al.
leges that it was on or about July 2,
and he testifies that he thought it was
July 1Or z, that Shape importuned
and requested defendant to buy the
beer and barrels. There is no evi-
dence in the record having the least
tendency to show that the plaintiff
ever authorized or ratified any sale
or waiver of its right to the cOoperage,
but on the contrary it's every act in
this connection, its agreement by
letter with Ecker the regulations
printed on the backs of its bills. and
prompt wiring to have an attorney
repIevin the barrels, indicate that they
remained the property of the plain
tiff and that it never intended to re-
linquish any right to them. 1t woul1
seem that the district court in effect
assumed that by sending Shape forth
to solicit orders for beer it became
bound by anything else he might 10
in connection with it's affairs AS it is
not shown that Shape had any general
authority to act for the company or
that he was empowered to waive it's
right to the cCoperage, or that his
acts were ratified, his declarations
were merely hearsay, and however
much the defendant may have been
lured into relying upon them they
did not affect the rights of the plain
tiff. Shape had been sent by the plain
tiff, not as its general agent with
power to dispose of the cOOperage
it had reserved by its rules and by
express conditions with Ecker. but to
solicit orders for beer subject to the
approval of it's officers in Milwaukee,
and in addition he was specially di-
rected by telegram to employ a
good commercial attorney, and have
him replevin the barrels and the plain
: tiff did nothing which could be con-
structed as holding Shape out as an
: agent with power to waive any right
to its cOOperage. Sending him forth
for these limited purposes did not
give him additional power nor make
the company liable further than they
had endowed him with authority.
If by making him travelling sole
: itor the plaintiff became bound by its
acts in attempting to waive the RICH,
to it's cOperage on the same principal
he could bind the plaintiff by a sale
of its brewery on credit. or ticket
agent or conductor could sell the prop
!. erty of railroad company, or a dray
man or common carrier could effect
> ually sell merchandise when only
uthorized to haul it. If the defend
INT had wired to the plaintiff befors
: closing the deal or required Shape t.
show telegram or some written
authorization, instead of trusting IL
: Shape, any trouble might have beer
D avoided. The cards to which We have
e referred and evidence regarding then
!: which was admitted over objectio,
L did not tend to prove any requisite
e authority in Shape The trade mar;
I of the Jos. Schlitz Brewing Company
!. with it's girdle encircling the globe
did not have the potency of an of1fcia
J. seal, there was no proof that tn
e plaintiff had printed or issued then
9 or authorized Shape to use them. bu
II it had. the words they bore. A.
, Shape, with JOS Schlitz Brewing Co
II did not define his powers. or indicaat
e whether he was the president or tn
II porter of the company or merely it
9 travelling solicitor, and would not wal
. rant the defendant or the court in col
: Guiding that Shape had been author
n lzed by the plaintiff to dispose of it
e eooperage or it's breweries. If by tn
n assumption or pretense of authorii
J. any one could effectually sell the prof.
u erty of another without being en-
powered by him. no mans holding
"a would be safe. Branton testified thu
L he got his power to sell the kegs a
E assignee from Shape who was suppO
n ed to be the agent of plai
y tiff. At different times when ruin
IL an objection to testimony the coul
Is recognized and stated the corret
VI principle that an agents authorit
D. could not be proved by his own &C,
IS and declarations, and still a new tri;
:. was refused when there was nOthin
ot else to show that he was empowere
IL to waive the plaintiffs right to tt