Atlas Glass Co. v. Ball Bros. Glass Mfg. Co.

• Citation: 87 F. 418
• Parties: ATLAS GLASS CO. v. BALL BROS. GLASS MFG. CO.
• Decision Date: 01 June 1898
• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York

87 F. 418

ATLAS GLASS CO. v. BALL BROS. GLASS MFG. CO.

United States Circuit Court, N.D. New York.

June 1, 1898

William L. Pierce, for complainant.

Frederick G. Fincke, for defendant.

COXE District Judge.

The defendant is a New York corporation. The certificate filed with the secretary of state gives the office of the company at Buffalo, N.Y., where the factory and place of business of the company were formerly located. In 1893 the business was removed to Muncie, Ind., where it now is. The subpoena was served upon R. G. Wright, of Buffalo, as agent of the defendant. When the defendant removed its business to Indiana it retained an office at Buffalo until December, 1896, when it sold its property there to the said Wright.

Two letters appear in proof, dated respectively May, 1897, and January, 1898, written by Wright upon the paper of R. G Wright & Co. on which appears a lithographic picture of the 'Muncie Works' and a statement that the firm are the successors to and agents for Ball Bros. Glass Mfg. Co. ' Immediately prior to the commencement of this suit the counsel for the complainant telegraphed to Wright & Co. asking for the Buffalo address of the defendant and received a reply as follows: 'Ball Bros. Glass Mfg. Co., 52 Terrace, Buffalo. ' On the 18th of January, 1898, the defendant entered into a contract with Wright & Co. in which it says, 'We hereby appoint you our selling agents for the Eastern market. ' Pursuant to this agreement the firm were to sell the Mason fruit jars manufactured by the defendant according to its prices attached to the agreement. They could make no profit except their 'selling commission' and were to report all orders to the defendant who was to enter them as sales to the firm. The agreement continued in force for about four and a half months. This agreement superseded all prior arrangements and must be regarded as establishing the legal relations of the parties at the time the process was served. The declarations of Wright & Co., assuming that they have any bearing upon the question in issue, were made prior to this agreement and when a different status existed. The statement in the telegraphic dispatch was made afterwards, but so far as appears was wholly unauthorized by the defendant.

It is argued by the defendant that the agreement of January 18th did not create an agency of any kind but was simply a contract of sale. The agreement is unique in several respects and much may be said in favor of this contention, but it is thought, considering the paper in its entirety, that it did not create the relation of vendor and purchaser, but rather that of principal and agent. Wright & Co. were to sell, for a short period, the defendant's goods under a...