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

me-" From this it would seem that
believed that plaintiff had
sold the kegs to Ecker, which. as we
have indicated was not the fact. Or
that the creditors could sell plaintiffs
property to apply in payment of Eek
er's debts, which is not the law. Tes-
t imony to prove that in one instance
in far away San Diego, California. SO
long ago as the year 1888 the empty
kegs were returned to the brewery
and other evidence offered for the pur-
pose of showing that this is the GUS
tom was properly excluded. BY the
letters between plaintiff and Ecker
ownership of the cooperage was. re-
served in terms too explicit to need
explanation AS notice to the world :
of plaintiffs ownership these casks
bore its name burnt on the ends AMI
sides. DEPENDENT testified that dur
ing the seven years he was in the no.
tel business in Carson City, the brew |
ing company with which he was deal
ing took back the empty kegs. 1t
is apparent that he was aware that
the cooperative might not have been
included in the sale of the beer to
Ecker. but if not so he could not safe
" purchase it without first obtaining
correct information. Notwith standing
defendant wrote that plaintiff was not
known in the transaction it is claim
ed that the plaintiff through one A.
! G. Shape as its agent sold or walve1
! it's right to the casks in favor of de-
| PENDANT and the assignee, and that by
receiving a percentage of the money
| which the defendant paid fer the beer
and kegs plaintiff is estopne3 from
recovering the coOperage. Witnesses
! for the defendant testified that after
he had placed with Branton, as as
| sienee Of Ecker for the creditors a
| bid of S55000 for the Schlitz beer
on hand. the defendant asked Branton
if the cooperage went with the beer
and declined to take it without end
the latter by phone called Shape Who
was in Reno at the time and who
came to the office to see them. and
who represented himself as the Pacific
Coast agent for the plaintiff and said
that ordinarily the kegs were supposed
to be returned to the brewery but
in this case the company had no claim
on them and no agreement with Ecker
by which it could recover them from
his assignee, that Shape inquired for
a lawyer and defendant introduced
him to Attorney King in Reno. that
Shape made out bill in the name Of
the defendant against Ecker or his
assignee for 1859 IS and included
therein an item for forty-fye half
barrels at 1925 each amounting to
s1O125 Shape testifies that in max
ing this charge he exceeded his an
thority and that he did not negotiate
for the sale of the casks to the de-
PENDANT There was evidence that
Shape left Curler and Kings Office
saying he would wire to the plaintiff
in regard to the cOoperage and defend
ant said on the stand that he sup
. posed Shape had gone to telegraph
, concerning it, and King testified thai
Shape told him the next morning that
) it was alright. Shape presented cards
| bearing near the top the trade mark
of the Schlitz Brewing Company and
the motto, "The beer that made Mil
waukee famous, at the center, "a
| G. Shape" and near the bottom, with
, JOS Schlitz Brewing Co., Milwaukee
: Wis" These and the testimony were
; admitted over objections. While the
I evidence was being placed in plain
2 tiff's case in chief it was sought &c
prove by the dispositions of the officers
, of the company that Shape had no au
: thority to sell or waive its right tt
1.-The cooperage The witnesses were
{ asked whether he had been authorized
i. empowered or instructed to dispose q
: any cooperage. Objection was made
e and sustained on the grounds tina
? whether he was authorized was a con
J. clusion and that the witnesses coult
= testify only to the terms OF the ap
Q pointment This is correct doctrine
J. in cases where it is sought to prove
/ power or authority in an agent. If il
= writing, the instrument should be pro
8 duced or it's loss shown, and il verba
d the language should be stated to tn
z best of the witness recollection. Blu
Il when, as here, it is sought to prov
g a negative and that no authority wa
v given, such objection can not pre-
4 vail or apply for it is beyond reason
= and impossible for witness to stat
S. the terms of an appointment whe1
n none exist and although the word al
1t thOrity is too much in the nature Q
1t conclusion to use in a question to
IT witness it is at least proper for hi1
% to testify that there was no instruct
g ion or nothing said or written in r.
ID gard to the matter by the party claim
er ed to be the principle to the part
N claimed to be the agent. The depos
is tions were taken under stipulation
1t that waived objections to the form {
Is the heterogeneous. On the trial oil
at jections were made to the answer
to which were responsive to the que.
N tons. But this testimony ought nc
ty to have been admitted on the plail
hit tiff's case in chief for another reaso
er and it's exclusion worked no injur,
ne If the questions had been entirely III
IT, Objectionable in form the evidenc
Sc had no proper place in the case G.
d. cept in rebuttal and not until aftt
the defendant had introduced som
ty proof of agency. Under elementr
to rules it was Incumbent on him I
lis prove the allegations of his answ,
en- before the plaintiff was required
Ell rebut them. and it was quite unnece
ID sary for plaintiff to prove that Shay
be was empowered to make dispositiC
as of the cooperage until after defendal
od n Z,