Mikolas v. Hiram Walker & Sons

• Court: Minnesota Supreme Court
• Writing for the Court: MITCHELL, J.
• Citation: Mikolas v. Hiram Walker & Sons, 73 Minn. 305, 76 N. W. 36 (Minn. 1898)
• Decision Date: 13 July 1898
• Docket Number: 11,184 - (241)
• Parties: MORITZ MIKOLAS v. HIRAM WALKER & SONS

76 N.W. 36

73 Minn. 305

MORITZ MIKOLAS v. HIRAM WALKER & SONS

Nos. 11,184 - (241)

Supreme Court of Minnesota

July 13, 1898

Action in the district court for Hennepin county to recover $4,500 for falsely and maliciously accusing plaintiff of having counterfeited defendant's trademark. From an order Smith, J., setting aside the service of the summons plaintiff appealed. Affirmed.

A part of defendant's affidavit in support of the motion to set aside the service was as follows:

"The said Weil was not, and is not now, and never was, an agent of the defendant within the meaning of the statutes of the state of Minnesota, upon whom such service could be made so as to bind this defendant; that said Weil has not, and never has had, any authority to accept or receive service of any process for or on behalf of said defendant corporation, and has not, and never has had, any authority to sign the name of said defendant corporation for any purpose whatever. That at the time of said attempted service of said summons and complaint said defendant corporation had not any property within the state of Minnesota. That at the time of said attempted service, said Isaac Weil was, and for some time prior to said date had been, the exclusive wholesale handler in the city of Minneapolis of a certain brand of whiskey manufactured by this defendant known as 'Canadian Club Whiskey,' and that the said Weil at said date, under an arrangement between him and said defendant, had a right to sell exclusively, as a wholesaler in said city defendant's said brand of liquor, and that he, said Weil was entitled to certain concessions upon the price of said liquor at which defendant sells the same by way of a commission; and that the said Weil purchases of defendant its said brand of liquor and in turn disposes of the same to retailers for his own account in said city of Minneapolis except as aforesaid, said Weil has no relation or connection with this defendant."

SYLLABUS

Service of Summons on Agent -- Finding Sustained by Evidence.

On a motion to set aside an attempted service upon a foreign corporation by serving the summons on its "agent," held, that the evidence justified the court in finding that the person upon whom the service was made was not in fact the defendant's agent.

Service of Summons on Agent -- Foreign Corporation -- What Constitutes an Agent.

To constitute a person an agent of a foreign corporation, upon whom service of the summons may be made, he must be one actually appointed by and representing the corporation, and not one created by mere construction or implication, contrary to the intention of the parties.

Simon Meyers, for appellant.

If Weil was an agent for any purpose, the service must be upheld. G.S. 1894, § 5200; Laws 1895, c. 332. Factors, commission merchants and consignees are all treated as agents in the text books. Mechem, Ag. §§ 1, 14, 986a, 987, 992, 1007, 1008. As to who are agents within the meaning of statutes relating to service on foreign corporations, see Palmer v. Pennsylvania, 35 Hun, 370, affirmed in 99 N.Y. 679; Berlin v. Southern (N.J.) 17 A. 1079; Littlejohn v. Southern, 45 S.C. 96; Palmer v. Chicago Herald Co., 70 F. 886.

Welch, Hayne & Hubachek, for respondent.

An agent, within the meaning of the statute, must be one who holds that relation by actual appointment and the intention of the parties. Gottschalk v. Distilling, 50 F. 681; St. Clair v. Cox, 106 U.S. 350; Bankers v. Robbins, 53 Neb. 44; Fairbank & Co. v. Cincinnati, 54 F. 420; Evansville C. Co., v. United Press, 74 F. 918; U.S. v. American Bell Tel. Co., 29 F. 17.

OPINION

MITCHELL, J.

The defendant is a foreign corporation, organized under the laws of the Dominion of Canada, having its principal place of business at Walkerville, in the province of Ontario. It appears, at least inferentially, that its business is manufacturing "Canadian Club Whiskey."

In this action, which is one in tort, the plaintiff sought to subject the defendant to the jurisdiction of the court, pursuant to the provisions of G.S. 1894, § 5200, by serving the summons on one Weil, as its agent. The defendant appeared specially, and moved to set aside the attempted service...