McNeill v. Electric Storage Battery Co.

• Decision Date: 29 March 1918
• Docket Number: 9944.
• Citation: 96 S.E. 134,109 S.C. 326
• Parties: MCNEILL ET AL. v. ELECTRIC STORAGE BATTERY CO. ET AL.
• Court: South Carolina Supreme Court

96 S.E. 134

109 S.C. 326

MCNEILL ET AL. v. ELECTRIC STORAGE BATTERY CO. ET AL.

No. 9944.

Supreme Court of South Carolina

March 29, 1918

Appeal from Common Pleas Circuit Court of Richland County; J. W. De Vore, Judge.

Action by George McNeill and others, copartners trading under the name of the Capital City Garage, against the Electric Storage Battery Company and others. From the judgment rendered defendants appeal. Affirmed.

Hydrick J., dissenting.

Nelson & Gettys, of Columbia, for appellants.

Tompkins Barnett & McDonald, of Columbia, for respondents.

FRASER J.

The appellant states its case as follows:

"This is an action brought by McNeill and others, as Capital City Garage, against Electric Storage Battery Company, a foreign corporation, and others, alleging a fraudulent conspiracy to breach and violate, and the breach and violation of a certain agreement alleged to have been reached between Capital City Garage and Electric Storage Battery Company. The attempted service of the summons and complaint on the Electric Storage Battery Company was made by leaving copies thereof with Consolidated Auto Company and Columbia Ignition Specialty Company; the plaintiffs contending in their complaint that the auto company and the ignition company were both agents of Electric Storage Battery Company. The sole question presented by this appeal is whether or not the court has acquired jurisdiction of the defendant Electric Storage Battery Company, and that depends upon whether or not the alleged agency of the auto company or the ignition company was established at the hearing of the motion to set aside the service of the summons, made before his honor, Judge De Vore. According to the allegations of the complaint, in the spring of 1916 the battery company promised and agreed to enter into a contract with them, making Capital City Garage its sole and exclusive agents in the city of Columbia and vicinity for the sale of batteries and battery service; that at said time the battery company had a similar contract with Consolidated Auto Company, known by the trade name of Roddey's Garage, and that the battery company promised and agreed to cancel said contract with Consolidated Auto Company as soon as the same should expire, which was on the 16th day of September, 1916; that on or about the 19th day of September, 1916, the battery company informed plaintiffs they would not enter into the proposed contract but had placed the same with Columbia Ignition Specialty Company, and alleges a fraudulent conspiracy on the part of all the defendants. The motion to set aside the service of the summons was made on the grounds set forth in the case, the substance of which grounds is that no proper service had ever been made on the defendant Electric Storage Battery Company, or on any officer or agent thereof; that said battery company is a foreign corporation not engaged in business in South Carolina and having no office or agent in said state."

The appellant made a motion before Judge De Vore to set aside the service of the summons on the ground that the appellant was not doing business in this state and its codefendants were not its agents. The contract between the appellant and its codefendants must...