Joseph Schlitz Brewing Co. v. Barlow

Granger, J. There is no controversy but that the plaintiff owned the fixtures in question when they were loaned to Martz & Meier. As the loan was made by Silvers & Co<., it became necessary to show that the company had authority so to do, and there was an effort to do so by showing that Silvers & Co. was the agent of the plaintiff. The court, by an instruction, made the defense rest on the facts that Silvers & Cta. was Jhe agent of plaintiff, knew that Martz & Meier was using the property in violation of law. In the Sigourney Courier, a newpaper, was published, December 17, 1895, the following: “W. V. Silvers & Co., 254 dealers in wines an liquors. Agents for Jos. Schlitz’ Milwaukee beer. Office 309 East Main street, Ottumwa, Iowa. Send for prices.” This was permitted in evidence, against objections, to prove tbe agency of Silvers & Co. It in no way appears that plaintiff caused oar knew of such publication. It was error to admit it in evidence. If it be conceded that it was published by authority of Silvers & Oo., it could be no better as evidence than if it was a statement by Silvers & Oo. that it was such agent, and such a statement would not be permissible, under the rule that an agent’s declarations are not admissible to show the fact of his agency. Clanton v. Railway Co., 67 Iowa, 350; Bigler v. Toy, 68 Iowa, 687. The'rule is elementary. A citation by appellee leads us to think there is a failure to make the distinction between establishing an agency by proving declarations of agent and by the testimony of the agent. While an agent may be a witness to prove his agency, his declarations are not competent for that purpose. In Hall v. Manufacturing Co., 30 Iowa, 215, the agency was shown by the testimony of the agent. Besides, it may be said that there is no evidence whatever of the agency of Silvers & Oo<. at the time the fixtures were loaned. There is some evidence that a member of the firm was an agent for plaintiff after Martz & Meier had ceased to use the fixtures. With such a state of the record, under the instructions given, there should have been a verdict for plaintiff.— Reversed.