Ward v. Blake Manuf'g Co.

• Decision Date: 01 May 1893
• Docket Number: 202.
• Citation: 56 F. 437
• Parties: WARD v. BLAKE MANUF'G CO.
• Court: U.S. Court of Appeals — Eighth Circuit

56 F. 437

WARD v. BLAKE MANUF'G CO.

No. 202.

United States Court of Appeals, Eighth Circuit.

May 1, 1893

U. M Rose and G. B. Rose, (Caruth & Erb, on the brief,) for plaintiff in error.

John M Moore and H. D. Wood, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

Statement by CALDWELL, Circuit Judge:

On the 12th day of December, 1885, the Blake Manufacturing Company the defendant in error, agreed to manufacture and put up for Zeb Ward, the plaintiff in error, at Little Rock, Ark., pumps and pumping machinery for the purpose of supplying that city with water from the Arkansas river. When this contract was entered into the plaintiff in error made certain representations to the defendant in error as to the height from which the water was to be drawn, and the height to which it was to be thrown. The contract specified the water was to be 'lifted to a height of 200 feet.' It turned out that the water had to be lifted to a height of 285 feet, and that it had to be drawn from a greater height than was represented. The machinery was constructed and put in place. Its operation was not satisfactory. The plaintiff in error contended that this was the result of some defect in the construction or erection of the machinery, and the defendant in error contended it resulted from the representations of the plaintiff in error as to the height from which the water was to be drawn, and the height to which it was to be thrown the defendant in error having been guided by these representations in the manufacture of the machinery. Thereupon the parties entered into a second contract as follows:

'This agreement, made and entered into this 24th day of May, 1887, by and between the Geo. F. Blake Manufacturing Company, of Boston, Mass., party of the first part, and Col. Zeb Ward, of Little Rock, Ark., party of the second part, witnesseth, that for and in consideration of the original contract made between the same parties in the sum of thirteen thousand dollars, ($13,000,) and the further consideration of five thousand five hundred dollars, ($5,500,) the party of the first part agrees to carry out the proposition marked No. 2, and dated May 24th, 1887, in all its details, which not only consists of changing the two pumping engines now in the waterworks at Little Rock into compound condensing engines, each having 16"' high-pressure and 30"' low-pressure cylinders, and 18"' stroke, but further includes the furnishing by the party of the first part of two independent suitable air pumps and condensers, and one extra heater, so as to make the engines exact duplicates, and also includes all the pipe connections that are required to make the same job complete for running the engines separately or together, so that one engine can pump two million five hundred thousand (2,500,000) gallons of water in twenty-four (24) hours, or that the two engines together will pump an aggregate of five million (5,000,000) gallons of water in twenty-four (24) hours, through the 16"' pipe now laid from the engine house at Little Rock to the reservoirs. The party of the first part further agrees to send a competent engineer to Little Rock to remove the present machinery, that will not be wanted after the changes are made, and he to place the pumps on new foundations, that are to be built by the party of the second part, and at the expense of the party of the second part, after templates to be furnished by the party of the first part. The further intent of the party of the first part is to fit out this machinery complete at the pump house, and put the same in action, so as to satisfactorily perform the full requirements of the contract, with the complete connections belonging inside the walls of the pump house; the party of the first part not to be held responsible for any work outside of the pump-house walls. In consideration of the foregoing being carried out, the party of the second part agrees to pay to the party of the first part the balance due on the original contract of thirteen thousand dollars, ($13,000,) and further agrees to pay, in addition to this, the sum of five thousand five hundred dollars for the material and labor to be furnished in proposition No. 2, which is made a part of this contract. The party of the second part further agrees to pay the balance due on old contract, as soon as all the new machinery arrives at Little Rock, and further agrees to pay the balance of five thousand five hundred dollars, after all the work is completed, and the engines put in operation. It is further agreed by both parties to this contract that, in the event of any disputes in the final settlement of this contract, as to its meaning or execution, said disputes are to be settled by a board of arbitration, the party of the first part selecting one expert, the party of the second part selecting one expert, and the two experts thus chosen to select a third expert that will be satisfactory to themselves, and the party of the first part and the party of the second part agree to be governed by the decision of a majority of the board of arbitration.'

This action was brought to recover $7,000, alleged to be due on the first contract, and $5,500 on the second contract, and $2,899.79 on account for machinery and labor not included in the contract. The defendant filed an answer setting up various breaches of both contracts, be reason of which he claimed damages in the sum of $25,000, for which he made his counterclaim. The plaintiff filed a reply to the counterclaim, alleging that the contract had been complied with. The jury found for the plaintiff for the balance of $7,000 claimed to be due on the first contract, and for the $5,500 claimed to be due on the second contract, with interest. They did not find for the plaintiff on the account for $2,899.79 for the materials and labor, which the plaintiff claimed was not covered by the contract. There was judgment upon the verdict, and the defendant sued out this writ of error.

CALDWELL, Circuit Judge, (after stating the facts.)

The jurisdiction of the court is challenged upon the ground that it does not appear from the averments of the complaint that the plaintiff is a citizen of New York, or that its citizenship is different from that of the defendant. The point was not suggested in the court below. The allegation of the complaint is that the plaintiff 'is a corporation organized and domiciled in the state of New York.' A corporation must dwell in the state of its creation. It cannot have a domicile in any other state. 'It has no faculty to emigrate.' St. Louis v. Ferry Co., 11 Wall. 423, 429. The doctrine of the supreme court in the case of Bank v. Earle, 13 Pet. 519, 589, that a corporation 'must dwell in the place of its creation, and cannot migrate to another sovereignty,' has never been departed from. In a recent case in that court, after quoting the language of Chief Justice Taney in the case last cited, Mr. Justice Gray, speaking for the court, said:

'This statement has been often reaffirmed by this court, with some change of phrase, but always retaining the idea that the legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation, can only be in the state by which it was created, although it may do business in other states, whose laws permit it.' Shaw v. Mining Co., 145 U.S. 444, 450, 12 S.Ct. 935.

The logical and necessary result of this doctrine is that a corporation cannot have a domicile anywhere except in the place of its creation. The averment, therefore, of the complaint, that the plaintiff is a corporation organized and domiciled in the state of New York, is, for the purpose of jurisdiction,...