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

STATE OF NEVADA.
Jos. Schiitz, Brewing Company,
Appellant
r. Grimmon,
The complaint in this action is an
ordinary one in replevin for one hun
dred and fifty half and thirty eight
quarter beer barrels. alleged and ad
mifed to be of the value Of $4,000.
The answer declares that one A. G.
Shape was the authorized agent OF
plaintiff for the transaction of its bust
ness in the State of Nevada during the
times mentioned in the complaint,
that on or about June 10Th, 1903, Geo.
l.. Ecker was a wholesale liquor deal
er at Reno and was at that time in
solvent and owing plaintiff $869.75 fer
goods. wares and merchandise pre-
viously sold and delivered by plaintiff
to Ecker, which included the personal
property in disnute. That on this 10th
day of June various creditors of Ecker
agreed with him that one T. NJ. Bran
ton as trustee for all the creditors
should take possession of his property
and ovDeditOusly dispose of the same
and distribute the proceeds of the sale
thereof pro rata among the creditors.
That on July Cd, 1903. there was in
storage with the Flanagan Ware
house Company at Reno, Nevada, one
hundr ed and fifty half and thirty eight
QlSrter< barrels of Schlitz Beer con-
signed by plaintiff to Ecker. and that
thereupon plaintiff acting by and
through A. G. Shape as its agent i'm
portuned and requested defendant 70
purchase this beer and the half bar
rels and quarter barrels containing the
same and represented to and assured
defendant that the same were not the
property of the plaintiff and that plain
tiff had no claim thereupOn. but on the
contrary that they belonged to Ecker
and were part of his assets to be
sold for the benefit Of his creditors
and that defendant in express reliance
upon these representations purchased
and received these barrels and their
contents and paid therefor S566.75 and
that on or about September Z, 1903,
this money was distributed among the
different creditors and that the plain
tiff, through his attorneys, Curler and
King, received and accepted their pro
portionate part thereof.
These allegations of the answer be-
ing deemed denied under our Statute
and practice it was Incumbent upon
the defendant to prove them. or such
parts thereof as were necessary to
be established before he could prevail
That the coOperage was not included
in the sales of beer by plaintiff tC
Ecker is clearly indicated by thei'
agreement which was closed by letter
When sending bill of lading for the
first car load of beer the plaintiff
under date of June 25. 1902, afte1
specifying extent of credit and othe'
conditions. wrote: please always re
turn empties to us in a refrigator ca
and do not send us smaller quantit.
than $1,000 lbs" In his letter in re
ply on June 20, after saying he wa
glad they had agreed on prices ant
mentioning other matters, Ecker
stated: II shall follow your instruc
lions as to returning empties". Pun
suant to these terms Ecker returne,
the other cooperage from the min
cars Of beer he received. The plain
tiff offered to prove that there wer'
printed on the back of all bills sen
by the. plaintiff to its customers tn
following: Rules and regulations
The attention of all parties dealin
with JOS. Schlitz Brewing Compan,
is called to the following bylaws
rules and regulations Authority o
agents.--No one can bind this CON
pany or contract any debt on it's be
half unless a general officer of tn
company, or specially authorized b.
resolution of the Board of Director:
Sale and Delivery.-No order or agree
ment for the purchase of beer will b
considered as binding upon this con
pany until received and accepted q
the general Office in Milwaukee,
Return of empty packages.-The keg
and barrels in which the beer is sol
invariably remain the property of tn
Brewing Company The use there,
for any purpose other than holdin
beer constitutes conversion or larcen
of the same.-By order of the Boar
of Directors, August Uihlein, Seer
tary." Objection was made and su
tanned to the proffered evidence 9
the ground that these rules would n,
be admissible against the defendal
when the bills bearing them were n,
sent to him and he was not shown
have received knowledge regardir
them. BY his answer as stated al
by letter to which We refer hereaft
defendant was claiming through 8
assignment of Ecker's interest to h
creditors, and regarding the extel
or limitation of that interest. it w
permissible for plaintiff to show tn
On the back of the bills rendered
Ecker there was a printed conditit
that the kegs remained the proper
Of the Brewing Company. Any rig
which defendant acquired from Eek
or his assignee was limited by Il
terms on which Ecker had p,
chased from the plaintiff and the
could be shown regardless of defer
ants knowledge.
Ordinarily the purchaser of proper
must ascertain the facts relating
it's title or right or he buys at l
peril. This evidence would have be
cumulative to that we have quot
from the letters showing that the cox
erage was to be returned to t
Brewing Company wheI. the beer W
sold to Ecker. As the latter had