Glenmore Distilling Co. v. Craig

VAN DYKE, J.

The plaintiff brought suit against the defendant for the sum of three thousand nine hundred and twenty-four dollars and ninety-six cents, the amount of Kentucky whiskies sold and delivered to the defendant in San Francisco. The court below awarded judgment for the plaintiff in the sum of six hundred and seventy-four dollars and ninety-six cents only, and from that judgment and from the order denying plaintiff’s motion for a new trial, the plaintiff appeals. The questions involved in the case are quite succinctly stated in a stipulation entered into in open court during the trial of the cause. The respective counsel had stated previously what might be considered as admitted or proven: “Thereupon, it was further stipulated by and between counsel for plaintiff and defendant in open court, that the plaintiff is, and was at the time of the delivery of said whiskies, a corporation, duly organized and existing under the laws of the state of Kentucky; and that there was no controversy as to the amount of whisky received by defendant from this plaintiff, nor as to the amount due thereon, provided said defendant is not entitled to a rebate of five dollars per barrel .upon the whisky furnished by plaintiff to defendant. That the said claim for a rebate is based upon the said alleged modification of the original contract (Plaintiff’s Exhibit ‘A’) which said alleged modified contract is alleged to have been made by one F. A. Carter, acting for and on behalf of said plaintiff, which said modified contract was offered in

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evidence by the defendant, and is marked Defendant’s Exhibit ‘B.’ It was further agreed that the questions at issue in this case •were and are: 1. Did said F. A. Carter have authority from this plaintiff to make said modification of said original contract? 2. If he had such authority, did he make such modification of said contract? and 3. If the said Carter did make such a contract and had authority so to do, did it apply to the goods furnished by the plaintiff to the defendant?”

1. It is contended on the part of the appellant that if any rebate be allowed the defendant it was to be on the whiskies furnished by the Daviess County Distilling Company, and not by the appellant, the Glenmore Distilling Company. It appears that there were three Kentucky corporations engaged in the same line of business, the plaintiff company, the Daviess County Distilling Company, and the Eagle Distilling Company; that a Mr. B. Monarch, of Owensboro, Kentucky, was the president of all three companies, and Mr. F. A. Carter was an agent of said companies to place their whiskies with dealers on this coast. Mr. Carter was called as a witness on behalf of the defendant, 'and testified that he signed the contract known as the modification, and mentioned in the foregoing stipulated facts, and that at the time he knew of the previous contract of June 4, 1890; that he was in the employ of the companies mentioned at the time he signed the said modification; that Mr. Monarch, the president of these companies, sent him to San Francisco ■ for the purpose of representing such corporations, and he came out here for the purpose of selling the whiskies to the trade on this coast, and more specially to Mr. Craig, and to negotiate with him for the handling of their whiskies. Before leaving Kentucky, he testifies, he had a talk with Mr. Monarch relating to the contract which he subsequently made with Mr. Craig, and Mr, Monarch authorized him to make such contract, and he made it in pursuance of such authority. The contract was made for the purpose of guaranteeing to Mr. Craig the price of their whiskies, and it had reference to the whisky that he had already bought under the contract of June 4th. He reported to Mr. Monarch, when he went back to Owensboro, that he had made this modification contract with Mr. Craig, and he said it was all right as he had made it. On cross-ex-