298 Mass. 200 | Mass. | 1937
The defendant Hupp Motor Car Corporation, a foreign corporation, hereinafter referred to as the defendant, pleads in abatement to the jurisdiction of the court on the grounds both that the officer’s return is insufficient on its face to establish service upon the defendant and that in fact no valid service was made.
One return upon the subpoena shows service upon the defendant on December 3, 1935, "in hand to A. D. Chantler, its District manager, and the person in charge of its business.” By G. L. (Ter. Ed.) c. 223, §§ 37, 38, service upon a foreign corporation which is permanently or temporarily engaged in business in this Commonwealth may be made
■ But the defendant further insists that on December 3, 1935, it was not doing business within this Commonwealth and that it was not present or “found in” the Commonwealth and therefore that it was not in any event answerable to service or to suit here. As a nonresident it is entitled under general principles of comity as well as under the due process clause of the Federal Constitution to have this question examined and detérmined on the facts, and as to such a jurisdictional matter it is not bound by statements in the return, however correct in form the return may be. Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379. Thurman v. Chicago, Milwaukee & St. Paul Railway, 254 Mass. 569. Riverside & Dan River Cotton Mills v. Menefee, 237 U. S. 189. Philadelphia & Reading Railway v. McKibbin, 243 U. S. 264, 265. Bank of America v. Whitney Central National Bank, 261 U. S. 171, 173.
The evidence is reported, and in our opinion it establishes these facts: The defendant was engaged in the manufacture and sale of motor cars with general offices in Detroit, Michigan, and several manufacturing plants, all outside this Commonwealth. Prior to November 1, 1935, the defendant had a contract with a “distributor” located in Boston under which the defendant sold cars to the distributor on
On October 31, 1935, the Boston distributor discontinued business. This broke the connecting link between the defendant and the local dealers. As by the terms of the contracts under which they had been operating the dealers could not buy directly from the defendant, some new relationships must be established until another distributor could be found, if cars were to be sold. Thereafter the evidence shows certain activities of Ackerman and of Chantler, substantially all of which are stated or can reasonably be inferred to have taken place in Massachusetts and which arose more or less directly out of the changed conditions. On November 1 Chantler moved his residence to Massa
“During the Show Chantler Took’ two orders for cars from dealers, one for three and one for four cars, in the sense that he Took information from the dealers’ ” as to the types of cars wanted, wrote it on blanks known as distributors’ order blanks, which were signed by the dealers, and sent these blanks to Detroit.
When the Boston distributor ceased business it had in stock fifteen new cars which had been paid for by a finance company, and of which the finance company had taken and held possession in this Commonwealth. During the show, in order to avoid the injury which would result to the defendant from a forced sale by the finance company below standard prices, Ackerman, as the defendant’s representative, sold these cars on behalf of the finance company to the defendant’s Bridgeport distributor.
Written reports of Chantler’s activities which he made several times a week to the Detroit office, all of which were competent as parts of a continuous course of conduct, even though some were made after the date of the service, show that he arranged with a “trailer company” for delivery of cars by trailer; that he procured the acceptance by a dealer in Lawrence of a car which had been refused by another dealer; and that he “Signed new dealer contract” with a dealer at Lowell, and negotiated with another prospective dealer. He writes, “I expect to sell several more dealers.”
The foregoing subsidiary facts were in part expressly found by the trial judge, whose findings we adopt as our own, on the reported evidence, and in part are now first stated by us as our findings upon the evidence. We do not pause to discuss the question of the burden of proof under the plea. The evidence is for the most part either documentary or drawn from employees of the defendant on the
In our opinion, these facts taken together are sufficient to warrant the inference that the defendant, when the service was made, was engaged in business here within the meaning of G. L. (Ter. Ed.) c. 223, § 38, and that under the general controlling principles of law it had submitted itself to the jurisdiction of this Commonwealth. Each case depends upon its own peculiar facts. People’s Tobacco Co. Ltd. v. American Tobacco Co. 246 U. S. 79, 87. If the defendant was not doing business here before November 1, 1935, then at least at that time it came into this Commonwealth through its authorized agents, one of whom changed his residence to this Commonwealth. It then attempted to take control of the situation arising from the withdrawal from business of its local distributor. It made contracts and did business here in various ways and to the extent* required to accomplish its purpose. To a considerable degree it substituted itself for the local distributor. It went beyond the mere solicitation of orders here, which has been held not enough. Thurman v. Chicago, Milwaukee & St. Paul Railway, 254 Mass. 569, 571. People’s Tobacco Co. Lid. v. American Tobacco Co. 246 U. S. 79, 87. Green v. Chicago, Burlington & Quincy Railway, 205 IT. S. 530. Its transactions were more than isolated instances. They went far enough to partake of the character of a course of dealing for the time being, even if it may be that that course of dealing was not intended to be permanent. That the defendant did not do more business than it did may well have resulted from the fact that the defendant itself ceased to manufacture cars on December 17, 1935. We think the case distinguishable from the many cases cited by the defendant in which it has been held that no jurisdiction had been acquired. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, afiirmed, 255 U. S. 565. International Harvester Co., v. Kentucky, 234 U. S. 579. St. Louis Southwestern Railway of Texas v. Alexander, 227 U. S. 218, 228. Kansas City Structural Steel Co. v. Arkansas,
The evidence also shows that Chantler was the agent in charge of the defendant’s business within the meaning of the statute, if we assume, but without deciding, that the defendant can dispute the return as to this after it is once decided that the defendant was in fact doing business within the Commonwealth. See Bay State Wholesale Drug Co. v. Whitman, 280 Mass. 188, 194. And Chantler did not lose his character as an agent upon whom service might be made even if Ackerman, who was Chantler’s superior but who lived in Pennsylvania, was also temporarily within the Commonwealth at the moment of service, although there was no evidence that such was the fact.
To hold a corporation like the defendant, doing business here, to answer here to a suit by a resident of this Commonwealth arising out of transactions which took place here is not to impose an unreasonable burden upon interstate commerce, even if the defendant’s operations were in such commerce. International Harvester Co. v. Kentucky, 234 U. S. 579, 587. Davis v. Farmers Co-operative Equity Co. 262 U. S. 312, 316. St. Louis, Brownsville & Mexico Railway v. Taylor, 266 U. S. 200, 207. International Milling Co. v. Columbia Transportation Co. 292 U. S. 511. See Trojan Engineering Corp. v. Green Mountain Power Corp. 293 Mass. 377, 384. Compare-Michigan Central Railroad
As the service upon Chantler was binding upon the defendant, the plaintiff was not injured by the ruling of the judge sustaining the plea as to other attempted services. Without intending to throw doubt upon the correctness of that ruling, it seems unnecessary to pass upon it.
Interlocutory decree entered January 8, 1937, affirmed.