American Elec. Welding Co. v. Lalance & Grosjean Mfg. Co.

• Decision Date: 31 July 1917
• Docket Number: 809.
• Citation: 256 F. 34
• Parties: AMERICAN ELECTRIC WELDING CO. et al. v. LALANCE & GROSJEAN MFG. CO.
• Court: U.S. District Court — District of Massachusetts

256 F. 34

AMERICAN ELECTRIC WELDING CO. et al. v. LALANCE & GROSJEAN MFG. CO.

No. 809.

United States District Court, D. Massachusetts.

July 31, 1917

Van Courtlandt Lawrence, of Boston, Mass., for plaintiffs.

Choate Hall & Stewart, and Charles F. Choate, Jr., all of Boston Mass., for defendant.

DODGE Circuit Judge.

The defendant has appeared specially to assert want of jurisdiction in the court, and this objection is first to be considered.

The bill charges the defendant with infringing the Harmatta patent, No. 1,046,066, which the Court of Appeals for this circuit has heretofore held valid and infringed by a Massachusetts citizen in a suit brought by Thomson Electric Welding Company against Barney & Berry, Incorporated. See 227 F. 428, 142 C.C.A. 124; 236 F. 1022, 149 C.C.A. 671. In two other suits pending in this court against Massachusetts citizens, injunctions have been issued since the above decision, as set forth in paragraphs 7-9 of the bill.

1. From the affidavits submitted, it appears without dispute that before December, 1915, the defendant maintained a Boston branch, where a stock of goods, all manufactured by it in New York, and presumably including goods embodying the patented invention, were kept for sale, but that it discontinued said branch in December, 1915, pursuant to a directors' vote on June 22, 1915, disposed of the stock of goods, and thereafter did in Boston no business, except as below stated. The Court of Appeals decision referred to above was on October 5, 1915.

Whatever business has been since done on the defendant's account in Boston has been done in one room, No. 404, at 261 Franklin street, in charge of George A. Bath, employed by it as salesman, who has solicited orders for its goods and has been there assisted only by a Miss Edwards, employed as clerk and typewriter. A few samples brought from the former place of business have been kept there, but no stock of goods.

Bath has had no authority from the defendant to accept any order for goods made to him, or to make any sale, whether for cash or on credit. All orders received by him have been forwarded to the defendant in New York. They do not bind the defendant, unless and until there accepted by it. After transmitting an order, he has performed no further duties in connection with the goods ordered. All orders have been filled at the New York factory. Bills for all goods so ordered and forwarded are sent from New York direct to purchasers, and remittances in payment thereof have been made direct to the defendant in New York. No manufacturing has been done by the defendant, nor any of its books of account kept, in Massachusetts; nor has it had any bank account in said state.

'Place of business,' in section 48 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1100 (Comp. St. Sec. 1030)) is understood to mean, not a place at which any transactions having any reference to the foreign corporation are carried on, but a place at which it does such business as makes it 'found' within the district for purposes of service; i.e., business carried on in such manner and to such an extent as will warrant the inference that it is present there through its agents. Business being done within the district in this sense, and acts of infringement done therein appearing, section 48 is understood to impose the further requirement, as necessary to jurisdiction, that it be done at a regular and established place, but not to imply that jurisdiction may be obtained without showing that the business done within the district is of the above character.

So long as it followed in Boston only the course of business above described, I do not think the defendant can be said to have been doing business at the Franklin street office in the necessary sense. Its representative there found only took and forwarded orders to its home office in New York for acceptance or rejection. Green v. Chicago, etc., Co., 205 U.S. 530, 27 Sup.Ct. 595, 51 L.Ed. 916; Tyler Co. v. Ludlow-Saylor, etc., Co., 236 U.S. 723, 35 Sup.Ct. 458, 59 L.Ed. 808; General, etc., Co. v. Best (D.C.) 220 F. 347. That his authority from the defendant enabled him to complete transactions there on its behalf, or to represent it there in negotiations so as to bind it, as in St. Louis, etc., Co. v. Alexander, 227 U.S. 218, 33 Sup.Ct. 245, 57 L.Ed. 486, Ann. Cas. 1915B, 77, does not appear, nor that he ever assumed to exercise such authority there. Only in the solitary instance below considered is there any claim that said course of business was departed from in any respect.

If the above conclusion is wrong, and the business done as above in Massachusetts is to be regarded as sufficient in character to make it liable to service of process therein, I see no reason to doubt that the requirement of a regular and established place of business is satisfied. The defendant's name appeared in full on the office door, with 'George A Bath, Manager,' following. Its name appeared also in the directory at the entrance of the building as occupant of the office, and in...