Premo Specialty Mfg. Co. v. Jersey-Creme Co.

• Decision Date: 07 October 1912
• Docket Number: 2,083.
• Citation: 200 F. 352
• Parties: PREMO SPECIALTY MFG. CO. v. JERSEY-CREME CO.
• Court: U.S. Court of Appeals — Ninth Circuit

200 F. 352

PREMO SPECIALTY MFG. CO. v. JERSEY-CREME CO.

No. 2,083.

United States Court of Appeals, Ninth Circuit.

October 7, 1912

This was an action brought by plaintiff in error, a California corporation, in the superior court of Los Angeles county Cal., to recover for goods, wares, and merchandise consisting of aseptic straw dispensers, alleged to have been sold and delivered f.o.b. at Los Angeles, Cal., to the defendant in error, a Texas corporation, and for certain aseptic straw dispensers manufactured at the request of the defendant in error to be delivered by the plaintiff in error f.o.b. at Los Angeles, Cal., and thereafter offered to be delivered, but by the defendant in error declined to be received.

Service of summons was made upon T. E. Blanchard. In the return of service it was recited that said T. E. Blanchard was the treasurer of the defendant corporation and its business agent within the state of California. It was further recited that the defendant corporation was then doing business within said state. The suit was removed, upon the petition and special appearance of the defendant in error to the Circuit Court of the United States for the Southern District of California because of diverse citizenship. Thereupon the defendant appearing specially for that purpose, moved to set aside and quash the service of summons and return upon the ground that the court had no jurisdiction of the action, because at the date of the service of summons the defendant was a foreign corporation organized under the laws of the state of Texas and was not at the time doing business within the state of California; that T. E. Blanchard, upon whom summons was served in said action, was not at said time the managing or business agent of the defendant in the state of California and was not at said time a cashier or secretary of the defendant corporation within said state; that defendant had never designated the said Blanchard as a person upon whom summons might be served within the state of California; that said Blanchard on said date was a resident and citizen of the state of Texas, and was only casually within the state of California at said date.

It appears that the defendant has its place of business in the city of Ft. Worth, Tex., where it is engaged in the manufacture and sale of an article designated as 'Jersey-Creme' syrup. It has also a branch factory in the city of Chicago, in the state of Illinois. From the affidavits of W. G. New-by, the president, and T. E. Blanchard, the secretary, of the defendant corporation, introduced by the defendant in support of the motion to quash, it appears that within a period of two years next prior to October 18, 1910, the defendant had not had any agent of any description in the state of California, nor did it during said period pay a salary to any person in the state of California for the purpose of carrying on the business of the defendant in said state; that prior to the 13th day of September, 1910, the date of the service of summons in this action upon T. E. blanchard in Los Angeles, Cal., the defendant had received orders by mail from California for small quantities of Jersey-Creme syrup, and had accepted such orders, and had sold and delivered small quantities of such syrup from its place of business in Ft. Worth, Tex., and from its branch factory in Chicago; that between the 1st of July and the 13th of September, 1910, defendant made four sales and shipments of Jersey-Creme to the state of California, and no more, the same being on mail orders, and to four different persons, and amounting in the aggregate in value to $253.13; that between the 13th day of September, 1910, and October 18, 1910, defendant had sold and shipped from its place of business from Ft. Worth to California, on a mail order, one 16-gallon of Jersey-Creme, and no more, and the value of this shipment was $20.

It appears, further, from these affidavits, that on the 13th of September, 1910, and for a long time prior thereto, T. E. Blanchard, upon whom summons was served in this case on said date in the city of Los Angeles, was a resident and citizen of the city of Ft. Worth, of the state of Texas, and was at that time the secretary and treasurer of the defendant company; that a few days prior to the 13th of September said Blanchard visited the city of Los Angeles for the purpose of ascertaining whether the plaintiff intended to carry out an agreement existing between the parties with respect to shipment and delivery by the plaintiff to the defendant at Ft. Worth, Tex., of certain aseptic straw dispensers, an appliance for distributing straws for drinks at soda fountains; that said Blanchard had no authority of any character from the defendant for any negotiations with the plaintiff, other than to ascertain and determine whether or not the plaintiff was to be relied on for further shipments of straw dispensers; that the whole time of the stay of said Blanchard in the state of California did not exceed five days; that Blanchard was engaged during his visit of said five days solely and alone in ascertaining the facts with respect to the shipments desired by the defendant of straw dispensers as before stated; that the plaintiff was at that time manufacturing the said straw dispensers, and the defendant was using the same on purchases made by defendant from plaintiff, and on deliveries made from Los Angeles from the plaintiff to defendant at Ft. Worth, Tex.; that said Blanchard was not authorized or empowered by the defendant to transact any other business, of any character whatsoever than that above designated, for the defendant within the state of California, at said time; that the defendant on the said 13th day of September, 1910, had neither property nor place of business of any description within the state of California.

In the affidavit of T. E. Blanchard he charges: 'That the plaintiff company, under the guise of negotiations and continued conferences with the said Blanchard with respect to the said matter of future shipments of straw dispensers, detained him in the said city of Los Angeles and procured to be served upon him the summons in this cause while so detained, and that the stay of the said Blanchard in the said city of Los Angeles was designedly prolonged by said plaintiff company, without the purpose of giving him definite answer to his demands in the behalf aforesaid, in order that the summons might be served upon him.'

The plaintiff in error introduced in evidence, in opposition to the motion to quash, the affidavit of one G. E. Sturgis, dated November 17, 1910, who stated that ever since the month of March, 1910, he had had an office in Room No. 307, at 660 Market street, San Francisco; that since the month of February, 1909, he had been the sales agent at San Francisco of and for the defendant, and was the distributor at San Francisco for the product manufactured by the defendant; that for the purpose of advertising said product, and also for the purpose of indicating to the public, the affiant was and had been the agent of the defendant at San Francisco for the sale of said product, and affiant, about March, 1910, had caused to be painted and lettered upon the entrance door to affiant's said office, and underneath affiant's name, the words 'Jersey-Creme,' and affiant had the same words and letters painted upon the window of affiant's office looking out upon Market street, the principal street and thoroughfare in the city of San Francisco; that since he had become the agent of the defendant he had sold for the defendant its products in a number of cities in the state of California, mentioned in the affidavit. The plaintiff also introduced the affidavits of two dealers, one in San Diego and the other in Los Angeles, with respect to their sales of the defendant's product during the years 1908, 1909, and 1910.

There was also introduced in evidence by the plaintiff the affidavit of Alfred J. Bayer, who on the 19th day of November, 1909, was the president, and from the 1st day of July, 1910, to November 21st, 1910, the secretary, of the plaintiff corporation. To this affidavit was attached a written contract, entered into by the plaintiff and defendant on the 19th day of November, 1909, in the city of Los Angeles, Cal. The contract provides the terms and conditions for the manufacture and sale by the plaintiff and the purchase by the defendant of certain aseptic straw dispensers, described as small portable machines, 9 inches long, 6 inches high, and 4 inches wide, designed to contain and protect from dust and other impurities, the straws furnished to patrons at soda water fountains and similar places. The contract provided for the manufacture by the plaintiff for the defendant of 5,000 of these aseptic straw dispensers, to be shipped on the order of the defendant and delivered f.o.b. the cars at Los Angeles at a price mentioned, within a period of 12 months of the date of the execution of the contract. The contract was signed by C. J Howell as secretary of the defendant corporation, who, it is alleged in the affidavit, came to Los Angeles from the state of Texas a short time prior to the date of the contract for the express purpose of entering into said contract with the plaintiff for and on behalf of the defendant corporation. It is alleged that the aseptic straw dispensers mentioned in the contract were manufactured by the plaintiff in the city of Los Angeles, state of California; that the causes of action set forth in the complaint in this case are causes of action arising out of this contract between the plaintiff and defendant. The affiant denies that the stay of Blanchard in the city of Los Angeles was designedly or at all prolonged by the plaintiff company in order that summons might be served...