J.B. Blades Lumber Co. v. Finance Co. of America at Baltimore
| Decision Date | 08 March 1933 |
| Docket Number | 175. |
| Parties | J. B. BLADES LUMBER CO. v. FINANCE CO. OF AMERICA AT BALTIMORE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Craven County; Harris, Judge.
Action by the J. B. Blades Lumber Company against the Finance Company of America at Baltimore. From a judgment of dismissal, plaintiff appeals.
Affirmed.
Whether one is another's agent is determined by nature of business and extent of authority given and exercised.
The defendant entered a special appearance and moved to strike out a purported service of summons and to dismiss the action for want of service. The officer's return is "Served 10/27/32, by delivering a copy of the within summons to F. J. Miller, Agent of the Finance Company of America at Baltimore."
The defendant is a corporation of the state of Delaware, having its principal place of business in the city of Baltimore. In its affidavits the defendant alleges that F. J. Miller is neither the president or other head of said corporation, nor its secretary, cashier, treasurer, director, managing or local agent, nor an agent for the purpose of service of summons upon the corporation. The plaintiff's affidavits allege that Miller is the defendant's agent for the purpose of collecting money.
Judge Harris found the facts to be as follows: The defendant has no office or place of business in the state of North Carolina at this time, nor has it had at any other time, and it is not now, and was not on the 27th day of October, 1932, nor at any other time, engaged in business in North Carolina; and that it has no property in this state.
F. J Miller is a resident of the state of Pennsylvania, 28 years of age, employed by the defendant corporation as a traveling auditor under the supervision of its treasurer. His duties consist of examining the books and accounts of his employer's customers in various states. He arrived in New Bern October 27, 1932, under direction to examine the books and accounts of J. B. Blades Lumber Company; he did so, made up a report thereon for his employer, and on the afternoon of the same day departed to perform similar duties in various states, as he had been previously directed by his employer. He visited several other towns in this state, examining books and accounts for his employer, but he was only transiently in this state. He was not regularly employed as a collector of accounts, but on his trip to New Bern he was specially authorized and instructed by letter from I. Strouse treasurer of the defendant corporation, to collect the account due from the J. B. Blades Lumber Company, or to collect such part of it as he could and to try to get postdated checks for such part as he was unable to collect in cash. He exhibited the letter to J. B. Blades, president of the plaintiff corporation, and while he was in New Bern the plaintiff corporation paid to him the sum of $50 to be credited on its account amounting to several thousand dollars due to the defendant corporation, and he executed a receipt therefor in the name of his employer and forwarded the payment to his employer at Baltimore, who retained it and credited it on account. While in New Bern Miller solicited the plaintiff corporation to send additional business to his employer, that is, to send additional notes and accounts for purchase or discount under an existing contract between them. Other traveling auditors of the defendant corporation had previously accepted payments from the plaintiff which had been credited to its account by defendant. Other traveling auditors had previously likewise solicited additional business. After the payment of $50 to Miller the copy of summons was delivered to him.
Upon these facts the court was of opinion that Miller was not such officer or agent of the defendant as the statute contemplates and that the delivery of a copy of the summons to him did not constitute service...
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