Murphy v. Campbell Soup Co., 4231.

• Decision Date: 29 April 1930
• Docket Number: No. 4231.,4231.
• Citation: 40 F.2d 671
• Parties: MURPHY v. CAMPBELL SOUP CO. et al.
• Court: U.S. District Court — District of Massachusetts

40 F.2d 671 (1930)

MURPHY v. CAMPBELL SOUP CO. et al.

No. 4231.

District Court, D. Massachusetts.

April 29, 1930.

Horatio N. Allin, of Boston, Mass., for plaintiff.

Gaston, Snow, Saltonstall & Hunt, of Boston, Mass., for defendant Campbell Soup Co.

MORTON, District Judge.

This is an answer in abatement by the Campbell Soup Company, raising the question whether jurisdiction of it has been obtained in this proceeding. In the writ the Campbell Sales Company also appears as a defendant; and the Corporation Registration Company and Harry S. Young are named in it in terms which might perhaps be regarded as making them defendants. The Suffolk sheriff so construed it and served on Young as a defendant. The plaintiff, however, disclaims this construction of the writ, agreeing that neither Young nor the Corporation Registration Company was intended to be made a defendant, and that as to Young the action may be dismissed. The Corporation Registration Company was never served upon. Service against the soup company and the sales company was made by the sheriff on the commissioner of corporations. The declaration alleges no cause of action against the sales company, and for this reason the suit has been dismissed as to that defendant. It now stands against the soup company alone.

There is a claim by the plaintiff to a jury trial on the answer in abatement. Both parties, however, have submitted the matter for decision on ex parte affidavits. Under Wetmore v. Rymer, 169 U. S. 115, 18 S. Ct. 293, 42 L. Ed. 682, and Gilbert v. David, 235 U. S. 561, 35 S. Ct. 164, 59 L. Ed. 360, the manner in which such preliminary questions of jurisdiction shall be tried is left to the discretion of the trial judge. In the present case there are no questions of credibility between witnesses, and the basic facts appear not to be seriously in controversy. It is much better that issues of this character should be determined by the judge rather than by a jury, in order that there may be greater harmony of decisions which is especially desirable where questions of jurisdiction are involved. The issue will therefore be decided on the affidavits.

The following facts appear: The Campbell Soup Company is a New Jersey corporation with a principal place of business at Camden in that state, where it manufactures and sells canned soups. The sales company appears to be a subsidiary of the soup company; it is a New Jersey corporation having to a great extent the same officers as the soup company. The sales company has registered with the commissioner of corporations in Massachusetts and is authorized to do business here. The soup company has never done so. The defendant's affidavits state that Young is hired by the sales company under a written contract which is set out in full; that acting for the sales company he sells the defendant's goods throughout a large part of New England; and that he does not act in any capacity for the soup company. He takes written orders which are directed to the soup company in New Jersey and submitted to it there as offers to purchase; if accepted the goods are shipped f. o. b. Camden. The orders are on a printed form and read: "Campbell Soup Company. Enter our order for goods listed below on the following terms: F. O. B. factory." At the bottom of the order appears: "Order secured by Campbell Sales Company." The goods are billed by the soup company to its customers in other states and are paid for by the customers directly to the soup company. Affidavits are presented by the plaintiff from the purchasing agents of S. S. Pierce Company and of the First National Stores that they bought Campbell soups through Young; that their orders went direct to the soup company; that the shipments came from the soup company;...