Jefferson Island Salt Co. v. E.J. Longyear Co.

• Citation: 98 So. 119,210 Ala. 352
• Decision Date: 08 November 1923
• Docket Number: 6 Div. 820.
• Parties: JEFFERSON ISLAND SALT CO. v. E. J. LONGYEAR CO.
• Court: Supreme Court of Alabama

98 So. 119

210 Ala. 352

JEFFERSON ISLAND SALT CO. v. E. J. LONGYEAR CO.

6 Div. 820.

Supreme Court of Alabama

November 8, 1923

Rehearing Denied Nov. 29, 1923.

Appeal from Circuit Court, Jefferson County; Romaine Boyd, Judge.

Action by the Jefferson Island Salt Company against the E. J Longyear Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Where a foreign corporation had done business in the state, but its operations had ceased prior to filing of suit and service of process on its statutory agent, who was merely an agent to solicit business, and subsequent to service defendant company secured another contract, validity of service must rest on status at time of suit and not upon conditions existing when cause of action arose, and defendant was not then doing business so as to render it suable as for a personal judgment on a foreign cause of action.

Service of summons was had upon Percy G. Cowin, "agent of said company" (defendant).

Defendant filed plea in abatement setting forth that Cowin had, prior to service, been designated as statutory agent of defendant in this state; that both plaintiff and defendant are foreign corporations; that the cause of action did not arise in this state; that the contract made the basis of the suit was made without this state; that defendant was not doing business in this state at the time of filing summons and complaint or service thereof. And it is averred that maintenance of jurisdiction by the courts of this state would deny defendant due process, etc.

Plaintiff joined issue on the pleas in abatement, and trial was had upon the following agreed statement of facts:

Plaintiff and defendant are both foreign corporations, each being incorporated in states other than Alabama. The contract sued on was executed outside the state of Alabama, and the cause of action sued on arose outside the state of Alabama. Said cause of action arose in 1919 and not prior thereto. Service in this case was had on one Cowin on the 10th day of November, 1921, and was the only service had in this case. Cowin's predecessor as statutory agent was first appointed statutory agent of the defendant in 1918, Cowin being appointed defendant's statutory agent in 1920 in the state of Alabama pursuant to the statutes and Constitution of Alabama, and the said appointment of Cowin had not been revoked at the time of the said service.

Activities of defendant in the state of Alabama were these:

Defendant is a mining engineering corporation, its business being to supervise the sinking of shafts in mines. Prior to the filing of this suit defendant had taken and executed in Alabama several such contracts for the sinking of such shafts.

Following is a list of all of such contracts from the beginning of the entrance of defendant into Alabama until the service of summons, giving the names of the other parties to such contracts, together with the dates on which work under such contracts was performed:

(1) Woodward Iron Company, August, 1918, to May, 1919, sinking shaft to iron ore.

(2) Woodward Iron Company, July, 1919, to September, 1919, doing excavation work in shaft.

(3) Woodward Iron Company, October, 1919, to January, 1920 concreting shaft.

(Each of the above three contracts has reference to the same shaft.)

(4) Woodward Iron Company (Songo), sinking shaft to iron ore September, 1919, to January, 1920.

(5) Woodward Iron Company, excavating shaft (Songo shaft mentioned in point 4), January, 1920, to April, 1920.

(6) Woodward Iron Company, concreting shaft (Songo shaft mentioned in point 4), April, 1920, to June, 1920.

(7) Woodward Iron Company, concreting Mulga shaft, November 1919, to February, 1920.

(8) Sloss-Sheffield Steel & Iron Company, sinking two shafts in coal, March, 1920, to March, 1921.

(9) Pratt Consolidated Coal Company, sinking two shafts in coal, August, 1920, to June, 1921.

No contract was undertaken or work on any contract done from the completion of the Pratt Consolidated job in June, 1921, through the service of summons in November, 1921. Cowin assisted in supervision of the work performed under the foregoing contracts after he was designated defendant's statutory agent in Alabama.

Cowin was the engineer who made the estimates of the qualities and price of the work done for the Sloss-Sheffield Steel & Iron Company on the job begun March, 1920, and ending 1921, above referred to. The last estimate that he made on this work was made in the month of June, 1921. This estimate was submitted to the engineer for said Sloss-Sheffield Steel & Iron Company, who declined to O. K. it. Subsequently Cowin addressed a letter to the engineer of the Sloss-Sheffield Steel & Iron Company written from Minneapolis, Minn., dated August 1, 1921, in regard to this estimate, and subsequently saw such engineer of the Sloss-Sheffield Steel & Iron Company in Birmingham in regard to this estimate. Thereupon said Sloss-Sheffield Steel & Iron Company's engineer O. K.'d such estimate, and thereafter said Sloss-Sheffield Steel & Iron Company paid the amount of said estimate as made by said Cowin; such payment being by check and sent to the defendant at Minneapolis, Minn., by mail by the Sloss-Sheffield Steel & Iron Company.

The manner of obtaining an execution of such contracts was as follows:

Cowin would solicit the business. He would get a proposal from a customer. He would send such proposal to Minneapolis, Minn., the home office of the defendant. Such proposal would be refused or accepted by the general officer of the defendant in Minneapolis. The contract would be signed by the other party to the contract in Alabama, and then signed in behalf of the Longyear Company by its general officer in Minneapolis. The signing by the defendant in Minneapolis always followed the signing by the other contracting party in Alabama. On the face of some of said contracts appear the words, "State of Alabama, Jefferson County." Said Cowin had no authority to close contracts, his authority in this behalf being limited to the solicitation and submission of said proposed contracts to the home office in Minneapolis. If there executed, said Cowin would supervise on behalf of the defendant the sinking of such shaft. The defendant would provide the labor, which would be carried on the pay roll and paid by the concern for whom the shaft was sunk. When completed, Cowin would not be paid for the work. The payment would be made by the concern for whom the work was done direct to defendant at its home office in Minneapolis. Said Cowin had never prior to the filing of said suit and the service thereof been paid direct for such work. He had no authority to accept such payment. Defendant had no plant in Alabama, no bank account in Alabama, and no office in Alabama other than the statutory office, being the house in which Cowin lived. When actually engaged in the performance of one of these contracts, the concern for whom the work was being done would provide for the use of the defendant while engaged in performing such work an office on the works. Said Cowin was defendant's engineer for the Southern Division, composed of the Southern States, and was paid a salary by defendant. His authority in Alabama was no greater than and no less than his authority in other states, except in so far as his appointment as statutory agent in Alabama may affect his authority in Alabama; said Cowin not being the statutory agent of defendant in any other state. Cowin was not required by defendant to reside in Alabama after finishing the Pratt Consolidated job in June, 1921. The last contract executed for work in Alabama by defendant prior to the filing of this suit was the above contract for the sinking of a shaft for Pratt Consolidated Company in Jefferson county, Ala. Said work was completed in June, 1921. Thereafter all obligations owed by the defendant in Alabama were discharged, and from the time of the completion of the said work in June, 1921, down to and through the time of the filing and the service of said summons, there were no outstanding obligations owed by the defendant in Alabama. The Sloss-Sheffield Steel & Iron Company still owed the defendant a balance for the work performed by defendant for it, mentioned above under point 8, and said Sloss Company mailed direct to defendant at its home office in Minneapolis a check made payable to the defendant for $4,883 on the 23d of November, 1921, in payment of this balance.

During the time from the completion of said Pratt Consolidated job in June, 1921, down to and through the service of said summons, no work was done by defendant in Alabama except as hereinafter stated. The working force which had done the labor on said Pratt Consolidated job was released by defendant and scattered to the various parts of the United States.

During the term under which Cowin was statutory agent of defendant in Alabama he was the only representative of defendant in Alabama.

After the completion of said job the only activities of the said Cowin, except as herein elsewhere stated, were in soliciting further work of the same nature to be performed in Alabama and elsewhere in the Southern Division. During the period in question, that is, from the completion of the Pratt Consolidated job through the service of summons, Cowin made trips of Atlanta, Ga., and to various points in the states of Tennessee and Illinois soliciting work of the nature described, to be performed by the defendant in those states. Two months of the time he spent in Minnesota. During the rest of the time he was in Birmingham, Ala., and while there he would, from time to time, solicit work to be performed in Alabama. No such work was performed, and no activities on the part of Cowin, or of any other representative of the...