Palmer v. Chicago Herald Co.

• Decision Date: 04 October 1895
• Citation: 70 F. 886
• Parties: PALMER v. CHICAGO HERALD CO. SAME v. CHICAGO EVENING POST CO.
• Court: U.S. District Court — Southern District of New York

70 F. 886

PALMER v. CHICAGO HERALD CO.

SAME v. CHICAGO EVENING POST CO.

United States Circuit Court, S.D. New York.

October 4, 1895

Wager Swayne, for the motion.

James R. Soley, opposed.

LACOMBE, Circuit Judge.

The case principally relied upon-- Goldey v. Morning News, 156 U.S. 518, 15 Sup.Ct. 559-- decides that service upon an officer or agent of a foreign corporation, who is only casually within the state, and not charged with any business of the corporation there, does not bind the corporation when it is not doing business within the state. Where, however, such foreign corporation carries on some substantial part of its business in the state by means of an agent or representative appointed to act there, it impliedly assents to be found there. It is sometimes not easy to determine what acts constitute a 'carrying on business' within the meaning of the authorities. In U.S. v. American Bell Tel. Co., 29 F. 17, and N. K. Fairbank & Co. v. Cincinnati, N.O. & T.P. Ry. Co., 4 C.C.A. 403, 54 F. 420, there will be found careful discussions of the principles which underlie the rule. In the case at bar it appears that the defendant in each suit has continuously in this state an agent, who solicits advertisements for defendant's paper, and who has authority to contract on behalf of defendant with persons offering advertisements to publish the same in the paper at its regular schedule rates. The making of such contracts is a substantial part of the corporate business, and it may fairly be held that the defendant does business within this state.

The question whether or not, upon the facts now before this court, the agent who makes these contracts is to be held a 'managing agent' of the defendant within the meaning of the state statute as to service upon foreign corporations, has been decided adversely to defendant by the 'general term of the state supreme court. There seems no good reason for giving a different construction to the state statute from that given by the courts of the state in a case where the foreign corporation, by doing business within the state, has impliedly assented to the state regulation as to service of process. The motion to set aside service of the summons is denied.