Doe v. Springfield Boiler & Mfg. Co.

• Decision Date: 01 October 1900
• Docket Number: 602.
• Citation: 104 F. 684
• Parties: DOE et al. v. SPRINGFIELD BOILER & MFG. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F. 684

DOE et al. v. SPRINGFIELD BOILER & MFG. CO.

No. 602.

United States Court of Appeals, Ninth Circuit.

October 1, 1900

Chas E. Naylor, for appellants.

Morrison & Cope and Walter G. Holmes, for appellee.

Appellants are the owners of the steamer Weeott. Appellee is a corporation organized under the laws of Illinois, and engaged in business at Springfield, in that state. W. H. M. Smallman is a commission broker having an office in San Francisco Cal. The libel in this case was filed by appellants June 5 1899, to recover damages for alleged defects in certain machinery and boilers purchased by appellants from the appellee under a contract made May 13, 1898. Service of monition was returned as having been made 'on W. H. M. Smallman, agent of Springfield Boiler & Mfg. Co.,' June 7, 1899. Appellee thereafter specially appeared, and moved to set aside the service upon the ground 'that Smallman was not at that time, or at any other time, a managing or business agent of the defendant upon whom such or any service could be made that would be binding upon the corporation. ' From the affidavits, testimony, and exhibits introduced upon said motion, it appears that in December, 1897, Smallman applied to appellee to become its selling agent; that it declined to appoint him, but agreed to quote him bottom prices on the goods manufactured by it; that in pursuance of this agreement he found several persons, including appellants, who bought goods of appellee at the prices quoted by it, with a commission fixed by Smallman added thereto to compensate him for procuring such buyers; that ever since the beginning of such relationship he has maintained an office in San Francisco, Cal., and carried on in his own name the business of commission broker; that appellee never paid him any salary, nor contributed to the payment of any rent for his office, nor paid him anything except the commissions earned by him in his transactions with it; that he procured from the corporation letter paper containing a lithographed letter head of the 'Springfield Boiler & Mfg. Co. Office and Works Nos. 308-330 East Grand Ave., Springfield, Ill.'; that he devised an addition which was made thereto, viz. 'San Francisco Office, 221 Front St. W. H. M. Smallman, Agent. ' Concerning these letter heads, Smallman testified: 'They were furnished by the company, but I paid for them. I was dealing in the goods of various manufacturers besides the Springfield Company, and in my endeavors to do business used the letter heads of those manufacturers, with additions similar to that on the Springfield paper. * * * I designed the additions to the letter heads myself, and received them from the lithographers at St. Louis, who had the original stone. I paid the lithographers' bill from them. ' The alleged contract was made May 13, 1898, and is evidenced by two letters, one an offer, the other the acceptance. The offer was written on a sheet with the letter head, as above stated, by Smallman, and addressed to Charles P. Doe, managing owner steamship Weeott. The letter states that for a named sum 'this company will build and deliver free on board the railroad cars at Springfield, Illinois, two Scotch marine boilers, as per the following specifications. The boilers will be built for the steamship Weeott, and for use on the waters of the Pacific Ocean. (Then follow the items and specifications.) * * * The boilers will be built, in accordance with the attached blue print, and under the supervision of the United States marine inspector for the Springfield district. This company will guaranty you that they will pass the inspection of the United States marine inspector at San Francisco, and that delivery on the railroad cars, at Springfield, Illinois, will be made in seven weeks from the 5th day of the present month. I have already submitted the blue print of the boilers to the

United States marine inspector at this port, and the same has been fully approved by him. (Then follow terms of payment.) If the foregoing is entirely satisfactory to you, will you have the goodness to admit the receipt of this communication, and favor me with your written instructions to go ahead with the work. * * * Yours, very truly, W. H. M. Smallman. ' The acceptance is as follows: 'May 13. W. H. M. Smallman, Agt. Springfield Boiler Mfg. Co.-- Dear Sir: Yours of even date at hand, containing details of boilers for the steamer Weeott. Same are hereby accepted, and you are authorized to proceed with the work. Truly yours, Chas. P. Doe, Mg. Owner. ' The testimony of Mr. Doe is to the effect that Smallman never informed him that he was acting as a broker, and not as agent, for the Springfield Boiler & Manufacturing Company; that he (Doe) at all times during the negotiations understood that Smallman was the agent of said company; that he never paid Smallman any money on account of said corporation without its order. This substantially presents all the material facts contained in the record. The court granted the motion, and set aside the service. Appellants excepted to this ruling of the court, and then stated that they were satisfied with the service of said monition and citation upon Smallman as the agent of the appellee, and that they proposed to rely thereon, and would 'not further prosecute the libel herein except the same be based upon said service. ' The court thereupon entered a final decree 'that the said libel be, and the sam is hereby, dismissed for want of prosecution. ' Form these orders and decrees this appeal is taken.

Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.

HAWLEY District Judge, after stating the foregoing facts, .

Was Smallman a business agent of the appellee, upon whom service could be made that would be binding upon it? Service of monition in admiralty may be made under the provisions of a state statute regulating the mode of service in actions at law and in equity. In re Louisville Underwriters, 134 U.S. 488, 493, 10 Sup.Ct. 587, 33 L.Ed. 991. Section 411 of the Code of Civil Procedure of California provides that 'the summons must be served by delivering a copy thereof as follows: * * * (2) If the suit is against a foreign corporation, or a nonresident joint stock company or association, doing business and having a managing or business agent, cashier, or secretary within this state; to such agent, cashier, or secretary.' 2 Hitt.Code Civ.Proc.p. 964. The service of process, under the provisions of this statute, is jurisdictional, and must always be such as to constitute 'due process of law.' The term 'business agent,' as used in the statute, does not mean every man who is intrusted with a commission or an employment by a foreign corporation. It may be said that every employe of a railroad...