Abbeville Electric Light & Power Co v. Western Elec. Supply Co

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: McIVER
• Citation: 61 S.C. 361,39 S.E. 559
• Decision Date: 05 August 1901
• Parties: ABBEVILLE ELECTRIC LIGHT & POWER CO. v. WESTERN ELECTRICAL SUPPLY CO.

39 S.E. 559
61 S.C. 361

ABBEVILLE ELECTRIC LIGHT & POWER CO.
v.
WESTERN ELECTRICAL SUPPLY CO.

Supreme Court of South Carolina.

Aug. 5, 1901.

FOREIGN CORPORATION—SERVICE OF SUMMONS—TRAVELING SALESMAN.

Code Civ. Proc. § 155, as amended by Act March 2, 1899 (23 St. at Large, p. 42), provides that a foreign corporation can be made party to an action by serving personally any agent of such foreign corporation within the limits of the state. Held, that service on a traveling salesman of a foreign corporation not having a resident agent, place of business, or property within the state, when the salesman visited the state in relation to the transaction out of which the suit arose, is a good service on such corporation.

Appeal from common pleas circuit court of Abbeville county; Benet, Judge.

Action by the Abbeville Electric Light & Power Company against the Western Electrical Supply Company. Motion of defendant to set aside service of summons granted, and plaintiff appeals. Reversed.

The defendant offered the following affidavit in support of its motion, viz.:

"Now comes the Western Electrical Supply Company, defendant herein, and states that George P. Schminke, the person upon whom service of summons was had herein, at the time of said service was not an officer of this defendant, nor a director thereof; that he was simply and solely the traveling salesman for this defendant; that his duties and powers with this defendant were simply and solely to take orders for the sale of merchandise, subject to the approval of this defendant, in such states as he might be directed by this defendant from time to time; that he had no other powers or duties than these; that he was a resident of the city of New Orleans, state of Louisiana; that this defendant has no office or place of business in the state of South Carolina; that said George P. Schminke was especially sent to the town of Abbeville at the time of said service to examine into the running of the machinery in controversy and report the facts to defendant, and that he was so sent at the request of plaintiff; that the contract between plaintiff and defendant out of which the alleged cause of action arose, if plaintiff has any cause of action, was not made in the state of South Carolina. Western Electrical Supply Co., per R. V. Scudder, Gen'l Mgr.

"State of Missouri, City of St Louis. R. V. Scudder, being duly sworn, on his oath states that he is, and was at the time hereinbefore mentioned, general manager of the Western Electrical Supply Co., defendant herein, and that the statements contained in the foregoing are true. R. V. Scudder.

"Subscribed and sworn to before me this 27th day of November, 1900, in the city of St. Louis, Mo. J. B. Carroll, Notary Public. [Official Seal.]"

The plaintiff, offered the following affidavit and card and letters in rebuttal, viz.:

"Personally appeared before me W. N. Thompson, who, being duly sworn, says that he is the president of the above-named plaintiff; that the letters hereto attached were received from the defendant in due course of mail, and letters, copies of which are hereto attached, sent defendant; that the card hereto attached was handed deponent by Mr. George P. Schminke when he came to Abbeville, representing the defendant in negotiations looking to the settlement of the differences between the plaintiff and the defendant, which resulted in the suit now pending in this court W. N. Thompson.

"Sworn and subscribed before me this February 21st, 1901. J. L. Perrin, C. C. C. P."

The following is the card referred to in the above affidavit: "George F. Schminke, Western Electrical Supply Company, Electrical Supplies, St. Louis."

The following are the letters and copies of letters in their regular order, referred to and attached to the affidavit of W. N. Thompson, viz.: "St. Louis, October 23d, 1900. Abbeville Electric Light and Power Co., Abbeville, S. C.—Gentlemen: Referring to your favor of October 6th, which has been held for the writer's return to the city, we notice fully what you have to say; and as there is such a marked difference between your report and the factory's report, and as we are put in the position of middleman, as sort of a bumper between you and the factory, you can readily appreciate our position, and we will defer writing you at any great length, excepting to say that, if your position is correct, you shall certainly be treated right. We have written our Mr. George F. Schminke, who will be in Abbeville now in about ten days, and we will get a full report from him, and we have also written the factory fully regarding the matter, and inclosed them a copy of your letter, and we are satisfied that it will be news to them, and we will advise you as soon as we hear from

[39 S.E. 560]

them, and we have requested them to write us by return mail fully regarding the matter; and we assure you that if your position is correct in this matter, and the machine is defective, that we will replace it with a machine that will perform in accordance with the contract. We trust you will bear with us until we can get a full and definite report from the factory, and a reply to our letter to them to-day inclosing a copy of your letter under answer. [Signed by defendant.]" The following is the letter of plaintiff in reply to the above: "Abbeville, S. C., October 27th, 1900. Gentlemen: In reply to your favor of the 23d inst., we note what you say, and would say that we are taking steps to buy a new machine at once, for we cannot afford to be delayed any longer in this matter. Now, in consideration of what you say in your last about sending your Mr. Schminke to Abbeville by the 3d proximo, we will defer buying the machine above referred to until the 5th proximo, provided you write us at once that your authorized representative will be in Abbeville by the above date, with power to act, so that we may be assured of a speedy settlement. [Signed by the plaintiff.]" The following letter in reply to letter of plaintiff follows: "St Louis, October 29, 1900. Abbeville El. Lt. and Power Co., Abbeville, S. C.—Gentlemen: Your favor of the 27th inst to hand, and this is simply to acknowledge receipt of your letter, and to let you know that we are following the matter up. Before answering your letter we are waiting to have a reply to a telegram we have sent to our Mr. Geo. F. Schminke to-day, asking him to wire us when he would arrive in Abbeville, and also asking him to advise us by wire where a letter would reach him, as we want to write him fully regarding the situation at Abbeville; and, upon receipt of his reply advising us when he will be able to reach Abbeville, we will answer your letter fully. We have no doubt, however, that he will be able to get into Abbeville not later than November 5th; and we think it will be very foolish of you to replace the Warren machine with a machine of another make, if you intend trying to operate the other machine under the same conditions as the Warren, and we are very sure that, if you will improve the conditions under which you are trying to operate this Warren machine and have your Warren machine fixed up, that you will have no trouble with it. We are very sure that, under the conditions you are trying to operate, you cannot get any machine to give you satisfaction, and we doubt if any machine would have stood the racket as long as the Warren machine has. Mr. Schminke is a very competent man, and capable of passing on a thing of this kind, and can advise you in a very few moments whether or not the conditions under which you are operating are unfavorable; and we trust that you will defer action on this matter until you give us an opportunity to look over the ground for ourselves, which we will do when our Mr. Schminke arrives in Abbeville. We will defer writing further until hearing from Mr. Schminke, and will notify you as soon as we have his telegram. [Signed by the defendant.]" The next letter is dated St Louis, October 30, 1900, addressed to the plaintiff, and is as follows: "Gentlemen: Referring to your favor of October 4th, in which you inclosed your bill of October 1st against us, amounting to $32.60, we return you herewith the invoice, and will thank you to kindly hold this with the balance of the papers until final adjustment is made on the account in accordance with the agreement, and, when final adjustment is made of the account, if you are entitled to credit for these items, you shall certainly receive them; but we would prefer not dividing the thing up, and making an entry now and another entry at the final adjustment, but will simply make one bite of the cherry. Please attach this letter and your bill to the other papers pertaining to this settlement, and keep all of the papers together, so that we can have them at the proper time. This letter was in a basket on the writer's desk during his absence in the East, and in cleaning up the basket to-day he found the letter, and he thinks this will be the best way to dispose of the matter temporarily. We have not yet received a telegram from our Mr. Schminke in reply to ours of yesterday asking him when he would reach Abbeville, but we have received a letter which indicates that he will be in Asheville, N. C, to-morrow, at which time we expect to receive an answer to our telegram, and we will then notify you just when you can expect Mr. Schminke in Abbeville. [Signed by the defendant] Postscript: We are sending Mr. Schminke some letters in your care, which we will thank you to kindly deliver to him when he reaches Abbeville." The next letter is dated St. Louis, November 1, 1900, addressed to the plaintiff, and is as follows: "Gentlemen: Our Mr. G. F. Schminke will be in Abbeville on the 5th inst., and we are writing him fully to-day regarding the situation there. [Signed by the defendant.]"

Wm. N. Graydon, for appellant.

Frank B. Gary, for respondent

McIVER, C. J. (after stating the facts). The action in this case was commenced by the service...