95 N.E.2d 5 (Ohio App. 1 Dist. 1950), Perkins v. Benguet Consol. Min. Co.

Citation:95 N.E.2d 5, 88 Ohio App. 118
Opinion Judge:PER CURIAM
Party Name:PERKINS v. BENGUET CONSOL. MINING CO. et al.
Attorney:Gorman, Silversteen & Davis, Cincinnati, for plaintiff-appellant., Ely, White & Davidson and Nichols, Speidel & Nichols, all of Batavia, and Lucien H. Mercier, Washington, D. C., for Gorman, Silversteen & Davis, of Cincinnati, for appellant. Ely, White & Davidson, Nichols, Speidel & Nichols, of ...
Judge Panel:ROSS, P. J., and HILDEBRANT and MATTHEWS, JJ., concur.
Case Date:January 27, 1950
Court:Court of Appeals of Ohio
 
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95 N.E.2d 5 (Ohio App. 1 Dist. 1950)

88 Ohio App. 118

PERKINS

v.

BENGUET CONSOL. MINING CO. et al.

Court of Appeals of Ohio, First District, Clermont.

January 27, 1950

Gorman, Silversteen & Davis, Cincinnati, for plaintiff-appellant.

Ely, White & Davidson and Nichols, Speidel & Nichols, all of Batavia, and Lucien H. Mercier, Washington, D. C., for

PER CURIAM

Two actions were commenced in the Court of Common Pleas of Clermont County.

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Service of summons was made in each case upon the defendant,by delivering to John W. Haussermann a copy of such summons. He was so served as 'Parent, President, and General Manager, Controlling Member, and the duly authorized representative in the United States' of the defendant. [88 Ohio App. 119]

Motions to quash, with proper reservation as to appearance, were filed and sustained by the trial court. From such ruling of the trial court, appeals on questions of law have been taken by the plaintiff and are now herein considered.

Essentially, two main issues are presented to this court.

(a) Is the defendant a foreign corporation within the purview of the law of Ohio?

(b) If so; was the defendant doing business in Clermont County at the time summons was made upon Haussermann?

No difficulty is encountered in returning an affirmative answer to the first query. It appears to be clearly demonstrated by the record that the defendant is a corporation organized and existing under the laws of the Philippines, and, therefore comes within the provisions of Section 8625-2, General Code, defining the terms 'Foreign Corporation' and 'State.'

The articles of incorporation and the applicable Philippine law sustain this conclusion.

The second query is not so easily disposed of and involved consideration of many authorities, which, at least, seem to be conflicting.

The facts upon which plaintiff predicates her claim that the defendant was in this State and doing business in Clermont County are as follows:

(1) The defendant 'opened accounts in The First National Bank of Cincinnati and the New Richmond National Bank of New Richmond, Ohio (Clermont County) in January and April of 1942, respectively, in the name of its President John W. Haussermann.' [88 Ohio App. 120]

(2) 'The accounts remained open for five years until April, 1947.' 'Considerable activity was revealed throughout the entire period of their existence, but particularly in the last eighteen months.'

(3) 'No one but John W. Haussermann ever possessed the authority to draw on these accounts.'

(4) 'Neither Bank has in its possession any authority, either by way of corporate resolution or otherwise, for the establishment of these accounts.'

(5) 'A directors' meeting of the Benguet Consolidated Mining Company was held at Pond Run Farm, the New Richmond home of Haussermann on January 23, 1946, at which meeting authority was given to the First National Bank to act as transfer agent for the transfer of shares of the Benguet Company stock.'

(6) 'The First National Bank so acted as transfer agent from that date on.'

(7) 'The Bank is a true transfer agent to the extent that no separate authority nor individual correspondence is required from the principal office of the Company in Manila to effect the transfer of shares of stock.'

(8) An office was maintained in a New Richmond Bank Building--claimed not used for any purpose in connection with the bank.

(9) Two secretaries employed by Haussermann in such office.

(10) Haussermann seen daily at such office.

(11) Haussermann admits possession of the Perkins' stock--now in dispute in these actions.

(12) Deposits of defendant's funds were made from Haussermann's office in local banks.

(13) Defendant 'had applied for and secured a Foreign Funds' Control Commission license for the expenditure of Twenty-two Thousand ($22,000.00) Dollars for office rent and salaries in the United States.' [88 Ohio App. 121]

(14) Correspondence by Hausseermann with local banks--pertaining to 'handling and payment of the various funds and credits on deposit * * * directing of forwarding drafts on New Richmond Bank to

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various individuals and companies throughout Ohio and the United States.'

(15) Haussermann signed 'purchase orders for various supplies and machinery which were to be shipped to the Company's mines in the Philippines.'

(16) Haussermann signed checks for obligations of the company this incurred.

(17) 'In the registration statements filed with the Securities Exchange Commission, he styles himself the President, General Manager, and the duly authorized representative of the Benguet Consolidated Mining Co. in the United States.'

(18) 'At a directors' meeting held as late as January 28, 1946, at Hausserman's house, The First National Bank of Cincinnati was designated as transfer agent for Benguet and no separate authority from Manila or elsewhere is necessary to effect a transfer of shares.'

(19) 'Haussermann maintains an office in the New Richmond Bank Building.'

(20) 'He employs two secretaries in that office.'

(21) 'Considerable correspondence about Benguet was carried on from this office concerning Foreign Funds Control Commission license, handling and payments of funds, forwarding drafts and the like.'

(22) 'Here in New Richmond, Haussermann admitted he signed purchase orders for supplies and machinery and signed checks for the payment of them.'

(23) 'Haussermann received as a salary as President and General Manager of the Company in 1945 the sum of $12,000.00, and $12,000.00 as President and General Manager of Balatoc.'

(24) 'Albert, Assistant Secretary, Jean M. Gorrdon, [88 Ohio App. 122] Assistant to the President, who was in New Richmond, and Francis O. Haussermann all were paid salaries in 1946.'

(25) 'Officer's salary, office rent, secretarial help and the like were all paid for by the activities Haussermann carried on in New Richmond.'

On the other hand, the defendant points to the following evidence, claimed to sustain the conclusion that the defendant was not in Clermont County--and did not 'do business' therein:

(1) The defendant is a corporation created and existing under the laws of the Philippines and engaged in the business of mining gold and silver in the Philippine Islands.

(2) The corporation, as such, has never maintained an office in the State of Ohio.

(3) It has never sold any gold or silver in Ohio.

(4) 'No production of gold or silver having taken place because of the War since December, 1941 to the date of these suits.'

(5) John Haussermann lived in the Philippines since 1898.

(6) He is the Company's president and general manager, and has been such for many years.

(7) He organized the Company in 1903.

(8) 'He came to Ohio in May, 1941, to attend to personal family matters with reservations to return to the Philippines in September, 1941.'

(9) He was prevented from so returning to the Philippines by War restrictions which cancelled his reservations of September, October, and November, 1941.

(10) He made continuous efforts to secure passage to the Philippines from December, 1945 to January, 1947, and succeeded in securing a reservation in August, 1947.

(11) During the time when he was thus forced to [88 Ohio App. 123] stay in the United States, he made his home on his farm in Clermont County.

(12) During the period from 1942 to the date of these suits 'he lived there less than half of the time.'

(13) Since 1906 he has had 'what he calls an office for a loafing place in New Richmond, Ohio, every time he came to the United States on vacation.'

(14) He built a building 'to house the First National Bank of New Richmond, of which he was President, and in the lease to the Bank, he reserved an office for himself for his loafing place.'

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(15) 'In which office no business people pertaining to Benguet ever came.'

(16) 'He did some banking business pertaining to the Bank in that office, and the townsfolk of New Richmond visited with him there.'

(17) During his stay in the United States in the war years 'when it was impossible to communicate with the Philippines he did what he could to protect the shipments of machinery, supplies and equipment which were returned to the East and West Coast because he was the only one in the United States who could do so.'

(18) 'In 1942 as a war expediency and because of the Foreign Funds Control Law [50 U.S.C.A.Appendix, § 5 et seq.], he transferred the Company's funds from a California, bank to accounts in his name in the First National Bank of Cincinnati, and in the New Richmond Bank.'

(19) It is stipulated that these funds in Clermont County were the property of the defendant, hence, under Section 11276, General Code, the venue of the action is properly laid in Clermont County.

(20) 'Benguet's surface properties at the mines in the Philippines were all destroyed during the war; and when the war was over, and in 1946, Benguet began rebuilding its properties in the Philippines, which required [88 Ohio App. 124] the purchase of machinery, supplies and equipment. Benguet had no funds in the Philippines, but did have those funds in the two Ohio banks. The Philippines had no machinery, supplies and equipment, and all of this had to be purchased in the United States. To transfer the funds in the Ohio banks to the Philippines, and then from the Philippines to the United States would have entailed an expense for exchange.'

(21) 'This machinery, supplies and equipment was all negotiated for and purchase by Benguet's Purchasing Agent in San Francisco, on the direction of the Company's Chief of Staff in Manila; and Judge Haussermann never negotiated for or purchased a single piece of machinery, supplies or equipment.'

(22) 'None of these items of machinery, supplies and equipment were purchased from any Ohio concern by the Company's Purchasing Agent.'

(23) 'The suppliers mostly always insisted on the formal orders being signed by a...

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