Thomas B. Jeffrey Co. v. Lockridge

• Decision Date: 19 January 1917
• Citation: 173 Ky. 282,190 S.W. 1103
• Parties: THOMAS B. JEFFREY CO. v. LOCKRIDGE.
• Court: Kentucky Court of Appeals

190 S.W. 1103

173 Ky. 282

THOMAS B. JEFFREY CO. v. LOCKRIDGE.

Court of Appeals of Kentucky.

January 19, 1917

Appeal from Circuit Court, Fulton County.

Action by W. S. Lockridge against the Thomas B. Jeffrey Company. Judgment for plaintiff after overruling a motion to quash the return upon the summons, motion for new trial overruled, and defendant appeals. Reversed, and cause remanded, with directions to set aside the judgment.

Herschel T. Smith, of Fulton, and Frederick Taylor, of Kenosha, Wis for appellant.

W. J Webb, of Mayfield, for appellee.

HURT J.

On the 30th day of June, 1914, the appellee, W. S. Lockridge, filed his petition in the Fulton circuit court against the appellant, the Thomas B. Jeffrey Company, in which he set out a claim that the appellant had in February, 1914, sold to him an automobile of the 1913 Cross-Country model, which it represented to be a rebuilt car and substantially as good as new, but which had turned out to be worthless, and not such car as was represented to him by the appellant, and he sought the recovery of damages against the appellant for such violations of its contract as were alleged in the petition. Summons was issued and served on the day of the filing of the petition on I. H. Read, whom the return stated was the agent of the appellant. The appellant is a corporation engaged in the manufacture and sale of automobiles and supplies for machines of its manufacture at Kenosha, Wis.

At the proper time the appellant appeared in court for the purpose only of moving the court to quash the return upon the summons, which had been issued upon the petition. The return was as follows:

"Executed June 30, 1914, by handing a true copy of this summons to I H. Read, agent Thomas B. Jeffrey Co.

Bailey Huddleston, S. F. C."

The ground upon which it was sought to have the return upon the summons quashed was that Read, to whom a copy of it was delivered, was not the agent of appellant, and never had been at any time its agent. The court overruled the motion to quash the summons, to which the appellant excepted. The case then proceeded to trial, and resulted in a verdict of the jury and judgment of the court in favor of the appellee for the sum of $865 in damages. Grounds for a new trial were filed, and motion made to that effect in proper time, but were overruled, and appellant has appealed from the judgment to this court.

Naturally the first subject for consideration upon the appeal is to determine whether the court below was in error in overruling the motion to quash the return upon the summons. If Read was not such an agent as upon whom a summons might be served, the court, while having jurisdiction of the subject-matter of the controversy, did not have jurisdiction of the appellant, and the proceedings against it were erroneous. Upon the hearing of the motion to quash the return on the summons several affidavits were filed, and also oral testimony heard, all of which was duly preserved and brought before us in the bill of exceptions. I. H. Read, the alleged agent, states in an affidavit, that he was not at the time of the service of the summons an agent of the appellant; that he never was an agent of the appellant, and never at any time held himself out as such agent, and that the only dealings which he ever had with the appellant was that in the year 1912 he bought some merchandise from the appellant and paid it therefor; that since November, 1912, he has not bought an automobile or any other thing from the appellant, and that such automobiles of the appellant's make as he has since that time bought and sold he bought from the Prince-Wells Company at Louisville, Ky. and paid it therefor; that the only dealings that he had had with the Prince-Wells Company was to buy machines from it outright that had been made by the Thomas B. Jeffrey Company, and paid the Prince-Wells Company therefor.

The affidavits of H. C. Hill, the assistant sales manager of appellant, and of E. J. Jordan, the secretary and sales manager of appellant, and of George H. Eddy, treasurer of appellant, were filed, and each of them states that Read was not at the time of the service of the summons upon him, nor had he ever been, either before or since that time, an agent of appellant; that he was never employed by appellant to do any kind of business for it or to act in any respect as its agent, nor to represent it in any matter of any transaction whatsoever, and that the appellant had never, by any act or word, held out Read to the public as an agent or representative of it, and that the only dealing or transaction it had ever had with Read was prior to the month of November, 1912, when it sold to him certain automobiles and equipment in his own name and for his own account, and for which goods he had paid the appellant, and that since November, 1912, the appellant has not had any business dealings or relations of any kind whatsoever with the said Read, and that Read has had at no time any property or goods, under his control or held by him for sale or distribution or otherwise which was the property of the appellant.

I. H. Read was called and gave parol evidence also upon the hearing on the motion. The substance of his testimony was that he had no connection nor employment nor business association with the appellant; that such cars of appellant's make as he sold in Fulton county in the years 1913 and 1914 he bought outright from the Prince-Wells Company at Louisville, Ky. and paid it therefor; that he had a contract with the Prince-Wells Company which gave him the right to sell the cars of appellant's manufacture in the county of Fulton; that he had not ordered to be shipped to him by the appellant any car or any other thing connected with its business during the years 1913 and 1914; that all such things he purchased from the Prince-Wells Company, but the relations which existed between the Prince-Wells Company and the appellant he did not know, but it was an agent; that during the year 1914 he had sold eight cars to persons in Fulton county and surrounding territory, all of which he had bought from the Prince-Wells Company; that a portion of them were shipped to him from the manufacturer at Kenosha, Wis.; that all came with a bill of lading with draft attached, which he paid before the cars were delivered to him; that he also bought supplies from the Prince-Wells Company, which he kept in a garage, and when these supplies were sold that he and the keeper of the garage divided the profits; that when he received cars and paid the draft attached to bill of lading he did not remember to whom the drafts were made payable, though he had paid drafts to both the Thomas Jeffrey Company and to Prince-Wells Company.

The testimony of other witnesses only related to the fact that they had bought cars of the appellant's make from Read and paid him for same, except W. A. Johnson states that he bought a car of the Jeffrey make from Read, as the agent of the Jeffrey Company, but it is evident from the other evidence in the case that it was a mere conclusion on Johnson's part that Read was an agent of the appellant.

While the evidence entirely fails to show what relations existed between the Prince-Wells Company, of Louisville, and the appellant, the contract in writing between Read and the Prince-Wells Company was put in evidence. In this writing the Prince-Wells Company is called...