Smith v. Hall

• Court: U.S. District Court — Northern District of Texas
• Writing for the Court: Cantey, Hanger, McKnight & Johnson, of Fort Worth, Tex., for plaintiff
• Citation: Smith v. Hall, 79 F.Supp. 473 (N.D. Tex. 1948)
• Decision Date: 29 July 1948
• Docket Number: Civ.A. No. 1473.
• Parties: SMITH v. HALL et al.

79 F. Supp. 473

SMITH v. HALL et al.

Civ.A. No. 1473.

District Court, N. D. Texas, Fort Worth Division.

July 29, 1948.

Cantey, Hanger, McKnight & Johnson, of Fort Worth, Tex., for plaintiff.

Thos. E. Scofield, of Kansas City, Mo., Seaberry & Hagman, of Weatherford, Tex., and Oliver Fannin, of Fort Worth, Tex., for defendants.

DOOLEY, Judge.

The plaintiff, Roland E. Smith, brought this suit against the defendant, Jesse E. Hall, Sr., doing business as Weatherford Spring Company (herein sometimes called original defendant), claiming unpaid commissions and breach of contract damages, relative to their written agreement dated January 1, 1946, whereby plaintiff became exclusive agent for the export sale of oil field equipment manufactured by defendant at Weatherford, Texas. Later the plaintiff amended his complaint to sue also the Weatherford Spring Company of Venezuela, C. A., a Venezuela corporation (herein sometimes called defendant company), organized in July 1947 by the other defendant and associates, and alleged that through collusion the two defendants were trying to circumvent the rights of plaintiff under said written contract. The summons issued against the defendant company was served by personal delivery thereof to Harriet Tucker, as agent of said defendant. The said defendant has filed a motion for dismissal, or in the alternative, to quash the purported service of process, on the grounds that it is not suable in this District, and in any event that there has been no valid service of process herein against it.

The pleadings show the aforesaid contract of January 1, 1946, and that for alleged good cause the original defendant declared same terminated as of October 9, 1947, and the evidence shows that a written contract of that same date was executed between the two defendants granting to the defendant company sales rights in foreign markets for the oil field equipment manufactured by the original defendant, and since then said company has been continuously engaged in such export business; that said defendant has had and maintained as its only office in the United States a furnished business room in Weatherford, Texas, which, since September 23, 1947, has been in charge of said Harriet Tucker, a salaried employee, working full time, under the general supervision of its executive officers, and she has been its only agent, employee or representative resident in Texas or elsewhere in the United States; that said defendant's President, Elmer Hall, and Vice President, James Berry, have both been residents of Venezuela, and during the aforesaid time have infrequently visited in Weatherford, Texas; that its stationery used in the business activities at said office has carried the inscription, "Export and Quotation Office, 202 Bridge Street, Weatherford, Texas"; that the said employee, Harriet Tucker, has, at all times, sent and received much mail, and also used telephone and telegraphic facilities, in the regular course of business at said office, and in signing letters so sent, she has regularly and without any challenge, designated herself as "Secretary" or "Assistant Secretary" of said defendant, and in like form has signed purchase orders, invoices, export declarations, cargo insurance policies, and various other business papers for the defendant, and in one instance so signed an attestation of a written contract which the President also signed for the defendant company, but she began said practice on her own volition and without any formal appointment in such official capacity; that she installed and kept at said office, for the defendant company, a system of double entry business books, including journal and ledger, as well as numerous other office records and files, covering its business done at and through Weatherford, Texas; that said employee regularly sent out letters to prospective customers soliciting business, and quoted prices to inquirers, but in so doing was confined to a definite price list authorized by the President of the defendant company, and received orders for purchases from customers, and in turn issued purchase orders to the other defendant (who had an adjoining office), for the required supply of equipment, and sent signed notices of shipments of orders to the customers of the defendant company; that in the regular course of such transactions the said employee, although without discretion as to prices or other terms, made many contracts for the defendant company in the sale of said equipment for shipment to foreign markets, and also made other contracts for said defendant, such as shipping and cargo insurance contracts, and made small routine contracts for purchases of office supplies at discretion; that the defendant company kept an active bank account in Weatherford, Texas, to receive deposits and for checking purposes, and said employee made deposits of all customer remittances therein from time to time, and also drew checks thereon, which were countersigned by the other defendant, for the payment of the salaries of the President and Vice President of the defendant company, and her own salary, and the payment of invoices for purchases from the other defendant, and ocean freight bills, cargo insurance premiums, accounts incurred for telegraphic service, purchases from office supply stores in Weatherford, Texas, and generally, the miscellaneous routine expenses incurred by the defendant company in the United States; that the above business pattern of the defendant company has been the same all the time said employee has been in charge of said office in Weatherford, Texas, and she was still doing said work as its employee at the time the process in question issued herein was served on...