Garner v. A. Fisher Brewing Co.

• Decision Date: 21 January 1890
• Citation: 6 Utah 332,23 P. 755
• Court: Utah Supreme Court
• Parties: FREDERICK S. GARNER, RESPONDENT, v. A. FISHER BREWING COMPANY, APPELLANT

23 P. 755

6 Utah 332

FREDERICK S. GARNER, RESPONDENT, v. A. FISHER BREWING COMPANY, APPELLANT

Supreme Court of Utah

January 21, 1890

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr. E M. Allison, Jr., for the plaintiff.

Mr James N. Kimball for the respondent.

ZANE C. J. ANDERSON, J., and BLACKBURN, J., concurred.

OPINION

ZANE, C. J.

This is an appeal from a judgment of the district court against the A. Fisher Brewing Company, for the sum of $ 190.20. It appears from the evidence of the record that about April 1 1885, one J. W. Browning negotiated the purchase of a saloon owned by Livingston & Co. in Ogden City, Utah, for the sum of $ 750; that the appellant advanced $ 300 of the amount, and to secure the same, took the bill of sale from the company to itself; that this bill of sale was to be transferred to Browning when he should pay the sum secured; that immediately thereafter Browning took actual possession, and placed a sign on the saloon as follows: "Depot of the A. Fisher Brewing Co., J. W. Browning, Manager,"--and under the name continued the business until June 23, 1886, when A. Fisher, on behalf of the appellant, took possession of the saloon and charge of the business, and dismissed Browning, and put one Whetstone in as manager; that, immediately after Browning commenced business, he employed plaintiff as bar-tender at $ 50 per month; that the latter continued as such bartender until June 23, 1886; that during the time of his employment the respondent's wages were paid from time to time out of the proceeds of the business, but that there was a balance due when Browning was turned out, for which the judgment appealed from was rendered. It also appears that Browning, during the time he was nominal manager for appellant, had letter-heads printed as follows: "Depot of A. Fisher Brewing Company, Ogden," and used them in his correspondence with the appellant and others; that the brewery was at Salt Lake, where Fisher resided, but that he visited the saloon in Ogden two or three times per month, and saw the sign at such times, and that he knew that the United States and city licenses were taken out in the name of A. Fisher Brewing Company. The respondent testified that, "The first time Fisher came to the saloon after Browning became manager, he said, Well, Fred, I see you are working for me, selling Fisher beer.' I said, 'Yes.' He then said: 'If you do as well for me as you did for old George Bruesch, I will be satisfied.'" Fisher testified that he said, "Hello, Fred now you are selling Fisher beer," and that he did not say, "I see you are at work for me, and I hope you...