Pаlaintiff appeals from an order quashing service of summons upon defendant, a Pennsylvania corporation. 1
On May 31, 1962, plaintiff commenced the instant action against defendant for an accounting and damages for breach of contract. On June 20, 1962, the trial court made its order for substituted service of summons on defendant pursuant to section 6501 of the Corporations Code. 2 Such service was made. Thereupon defendant appeared specially and moved for an order quashing the service of summons and complaint on the ground that the court lacked jurisdiction over defendant. The motion was heard upon affidavits and upon plaintiff’s complaint. The trial court granted the motion.
The complaint contains three counts. The first count alleges in substance that on August 15, 1935, plaintiff entered into a written contract with the “Albion Manufacturing Company, of Philadelphia, Pennsylvania, or assigns,’’ a copy of which is attached to the complaint and incorporated therein by reference ; 3 that thereafter Albion Manufacturing Co. (hereafter called Albion) assigned all its assets to defendant and terminated its business; that defendant succeeded to said business and on or about July 18, 1936, expressly agreed thаt it would be bound by the above mentioned agreement, plaintiff also assenting to its continuance.
*559 According to the terms of the agreement, plaintiff on its part assumed certain duties in connection with the promotion and sale of Albion’s products 4 and Albion on its part agreed to give plaintiff the exclusive right to sell Albion’s products in a specified territory consisting of almost all of the western states (including California) and to cooperate with plaintiff in working such territory.
Albion also agreed to pay plaintiff a 15 per cent “commission compensation” on the net amount of all orders accеpted by Albion which were received from the territory whether through plaintiff or otherwise and to render to plaintiff at the end of each month during the life of the agreement an itemized statement of the current month’s business with the trade in the territory. By its terms the agreement was to remain in effect until August 15, 1938, and thereafter for consecutive periods of three years each unless written notice was received by plaintiff from Albion to the contrary within 30 days prior to the expiration of any period.
Plaintiff alleges that defendant, as Albion’s assignee, breached the above agreement by accepting orders within the exclusive territory without accounting to plaintiff or paying it a commission. The second and third counts substantially replead the allegations of the first and for our present purposes need not be set forth in detail. It is sufficient to note that the third count alleges that on February 15, 1962, defendant repudiated and cancelled the agreement.
In support of its motion to quash, defendant filed the affidavit of Vincent E. Dewees, its vice-president and director of technical sales. The affidavit states in substance the following: Defendant, a Pennsylvania corporation, is in the business of manufacturing for sale certain caulking compounds and other paint and varnish products. Plaintiff is an inde *560 pendent distributor and sales representative having agreements with many other manufacturers throughout the United States for the distribution and sales representation of varied building and hardware products in California and other western states. Defendant does not have, nor has it ever had, any office in the State of California, nor does it presently have nor has it ever had any employees, agents, servants or officers in the State of California for the purpose of conducting business transactions and promoting sales or for any оther purpsoe. "The only contract that the defendant corporation has had with the State of California is through an oral agreement between defendant corporation and plaintiff corporation whereby the defendant corporation has agreed to pay a 10 per cent commission on orders obtained by said plaintiff corporation and approved by defendant corporation at its home office in Philadelphia, Pennsylvania.” (Italics added.) At no time has defendant given plaintiff exclusive distribution rights in any state or states, the oral arrangement being "strictly to pay” the aforesaid commission. "[0]n or about January 18, 1962, defendant corporation terminated any association with plaintiff corporation and terminated its oral agreement with said plaintiff corporation.” (Italics added.)
The affidavit further alleges: At all times prior to the termination of the oral agreement by defendant, plaintiff would send orders to defendant and defendant, after approving the same in its Philadelphia office, would mail or ship the items purchased directly to the purchasers, would bill the purchasers directly from its home office in Philadelphia and would receive payment therefor directly from the purchasers at its home office. During this period of time, plaintiff received from defendant no compensation other than the above commission. Plaintiff has in addition been paid a commission for products ordered directly by the purchasers in the western states serviced by plaintiff although orders for the same came directly from the purchasers rather than from plaintiff. The purpose of this was to encourage plaintiff to obtain orders in the area serviced. The only items of merchandise and products sold by the defendant in the area serviced by plaintiff were on a mail order basis and were limited to caulking compounds and caulking guns. Approximately 90 per cent of all orders from west coast wholesalers or distributors came directly to defendant from such wholesalers or distributors. Plaintiff at no time during the duration of the oral agree *561 ment had any authority to accept or reject orders, adjust claims, or exercise any administrative or other function in relation to the mail order sales.
It is also alleged that the gross sales by defendant in California from these products from 1957 to 1961 were as follows: 1957, $4,172.20; 1958, $5,350.71; 1959, $6,332.28; 1960, 6,632.90; 1961, $5,303.96.
According to Mr. Dewees’ affidavit, plaintiff is not an agent of defendant, the only connection between them being the above agreement to pay commissions, plaintiff having been in essence “only an order-taking conduit” for defendant. Defendant has never advertised in any trade papers, magazines or other forms of communication in California. At no time during the duration of the above oral agreement was there any activity by defendant in the State of California other than the above described sales through plaintiff as an independent distributor. At no time has defendant maintained any property or items of inventory in the State of California. Mr. Dewees summarizes his position in one of the closing paragraphs of the affidavit: “At no time during the duration of said oral agreement or at any other time has the defendant corporation maintained in the State of California a representation which gave it in a practical sense and to a substantial degree the benefits and advantages it would have enjoyed by operating through its own office or paid sales force.”
The affidavit of A. Jackson Detsch, plaintiff’s president, in opposition to defendant’s motion to quash, denying the allegations of specified paragraphs of Mr. Dewees’ affidavit, thereby denies that there was an oral agreement between the parties as therein alleged and controverts all allegations of the alleged relationship between them based on such oral agreement; denies that commissions paid plaintiff by defendant for orders received from purchasers directly rather than from plaintiff were for the purpose of encouraging plaintiff to obtain orders in the areas serviced by plaintiff; denies that the defendant, prior to its termination of the agreement, had paid plaintiff all commissions due on orders secured by plaintiff and approved by defendant; and denies that plaintiff is not the employee, agent, servant or officer of defendant and that plaintiff was only an order-taking conduit for defendant.
The affidavit affirmatively alleges in substance as follows: Defendant “took over” the business and obligations of *562 Albion, including the contract dated August 15, 1935. On or about July 18, 1936, defendant entered into an agreement with plaintiff providing that the same agreement that existed between Albion and plaintiff would apply to plaintiff’s representation of defendant on the West Coast. 5 Pursuant to the contract and understanding between the parties, plaintiff performed specified functions 6 in respect to sales of defendant’s products “for and on behalf of defendant in the State of California continuously from the date of said contract on or аbout July 18th, 1936, to and including its wrongful termination by defendant on or about January 18, 1962, . . . ” (Italics added.) Until the wrongful termination or breach of the agreement, plaintiff acted as defendant’s sales department within the State of California and other western states, and as a result defendant obtained substantially the same commercial advantages that would be available to it through an office or force of employees in the state.
Mr. Detsch further alleges that plaintiff has requested a complete accounting from defendant in addition to damages for breach of contract; that all witnesses, with the exception of defendant, namely the compаnies to whom shipments were made without proper commission or accounting hy the defendant, are located in and are residents of the State of California and adjacent states; that it would be economically impossible to prosecute the action in Philadelphia and that the cost of transportation of witnesses to Philadelphia would be prohibitive; and that the contract entered into between plaintiff and defendant was to be performed in California and many of the acts complained of against defendant in breach of said contract were perpetrаted within California.
It is manifest that there is a conflict in the affidavits on
*563
many points. We are mindful of the settled rule that: “An appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated. When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary. In the consideration of an order made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.” (4 Cal.Jur. 2d, Appeal and Error, § 614, p. 495;
Griffith Co.
v.
San Diego College for Women
(1955)
However, it is also to be noted that on other crucial points the affidavits are not in conflict or where conflicting that such *564 conflict has been resolved favorably to defendant under the rule set forth above. We point out such pertinent allegations infra in our disposition of the crucial issue of the case.
We are presented with two questions оn this appeal: (1) Was defendant doing business in the State of California within the meaning of Code of Civil Procedure section 411, subdivision 2, so as to be subject to the jurisdiction of California courts ? (2) Was defendant thus doing business in this state at the time of service of process? We deem it unnecessary to consider the first question. Were it necessary to pass on the point we would probably conclude even from defendant's affidavit that the solicitation of business by defendant through plaintiff was a sufficient contact with California so as to constitute doing business in this state, establish defendant’s corporate presence within its borders, and render defendant amenable to its process.
(Henry R. Jahn & Son
v.
Superior Court
(1958)
Before considering the second issue, we dispose of a preliminary matter. Confronted with defendant’s contention that Calbar was not doing business in California at the time of the service of summons, plaintiff complains that such contеntion was not made in the trial court and is made herein for the first time. It is urged that defendant's sole contention in the trial court was that defendant did not have sufficient contacts with California to warrant the conclusion that it was doing business here
at any time
and that it was never defendant’s contention that it had ceased doing business in this state on January 18, 1962. As mentioned above, the trial court’s order does not disclose the specific grounds upon which it was made. We have no transcript of the oral proceedings showing the contentions of the respective parties. Defendant’s affidavit does contain an allegatiоn that on January 18, 1962, defendant terminated any association with plaintiff which in the light of the other allegations summarized above is clearly susceptible of the inference that .plaintiff’s sales solicitation on which jurisdiction could be predicated ceased at that time. This allegation is the funda
*565
ment of the argument that plaintiff claims was not made below. Certainly the contention which plaintiff concedes defendant did urge below, that defendant was not doing business in California
at any time,
would include the claim that it was not doing business at the time of service of summons. Furthermore the concluding language of plaintiff’s affidavit is broad enough to encompass the latter claim.
8
We find nothing in the record which precludes us from considering the issue on this appeal. Moreover we point out that the burden rested on plaintiff who served process on a foreign corporation to establish that such corporation was doing business in the state at the time of service
(Jameson
v.
Simonds Saw Co.
(1906)
We proceed to consider the second issue in the light of the pertinent facts as they appear to have been impliedly found by the trial court from the affidavits already summarized by us.
(Griffith Co.
v.
San Diego College for Women, supra,
On January 18, 1962, defendant “terminated any association with plaintiff.” It has been noted that defendant alleges that on such date it terminated its oral agreement with plaintiff. We have already commented upon the divergent positions of the parties as to whether the agreement was oral or written. But it is to be noted that even in its affidavit plaintiff states that on the same date, January 18, 1962, the written agreement was terminated, alleging in a somewhat conclusionary or epithetical manner that the terminаtion was “wrongful.” There is thus no conflict that the relationship of the parties terminated on Januray 18, 1962. 9 The trial court could have properly concluded that the only activity establishing defendant’s “doing business” in this state as a basis of jurisdiction, namely plaintiff’s solicitation of orders, was brought to an end on Januray 18, 1962. The record is clear that substituted service of process was not made on defendant until August 27,1962, over seven months later.
In order that a California court may have jurisdiction over a foreign corporation, it is necessary that such corporation be doing business within this state at the time the summons is served. (Code Civ. Proc., § 411, subd. 2;
Jameson
v
Simonds Saw Co., supra,
We have found no statute similar to Corporations Code section 6504 dealing with the situation where the withdrawing cоrporation has engaged solely in
interstate
commerce. Since statutory authority is a necessary basis for service upon a foreign corporation
(Confidential, Inc.
v.
Superior Court, supra,
The crucial question we face is this: Did defendant’s activities in California prior to January 18, 1962, amount to the trаnsaction of
intrastate
business so as to bring defendant within the operation of Corporations Code section 6504? Defendant’s business did not have to be entirely
intrastate.
If there was any substantial intrastate business, the above statute is applicable no matter how much interstate business may have been transacted.
(Oro Navigation Co.
v.
Superior Court
(1947)
Where, as in the present case, there is a solicitation within the State of California of orders for goods by a local distributor or agency acting on behalf of a foreign corporation, such orders being subject to acceptance or rejection by the foreign corporation in anothеr state and where, upon approval of the orders, the goods purchased pursuant thereto are shipped directly from such other state to the purchasers in California, such sales and shipment constitute interstate commerce and the prior solicitation incidental thereto is a part of such interstate transaction and is not intrastate commerce.
(Bobbins
v.
Taxing Dist. of Shelby County
(1887)
*568
“ Transacting intrastate business” as defined in
*569
Corporations Code section 6203 is not the equivalent of “doing business in this State” as used in Code of Civil Procedure section 411, subdivision 2, and has a narrower meaning than the latter phrase.
(Carl F. W. Borgward, G.M.B.H.
v.
Superior Court
(1958)
It may be argued that no sound reason exists for differentiating between interstate and intrastate business in Corporations Code section 6504 (see 31 So.Cal.L.Rev. 355) but the Legislature has so provided and it is not within our province
*570
to substitute new or different standards. (See
Confidential, Inc.
v.
Superior Court, supra,
Under the facts of the instant case, the activities engaged in by defendant through plaintiff, its California distributor, were part of and incidental to interstate commerce and did not constitute intrastate business. Even assuming according to plaintiff’s affidavit that the basis of these activities was the assumption by defendant of the written agreement between plaintiff and Albion, it does not appear from such affidavit that the agreement to assume it was a transaction occurring within the State of California. It would appear to have been a “conversation” followed by a letter or memorandum emanating from defendant’s home office in Philadеlphia. While it is reasonably inferable that the conversation was by telephone it was incumbent upon plaintiff to establish the existence and nature of the agreement. (See Jameson v. Simonds Saw Co., supra, 2 Cal.App. 582, 586 and other cases cited supra.) 13 We therefore conclude that defendant does not fall within the operation of Corporations Code section 6504 and that, since it was not doing business in the State of California at the time of service of summons herein, defendant was not amenable to process in the ease before us.
The order appealed from is affirmed.
Bray, P. J., and Molinari, J., concurred.
Notes
Although the notice of appeal states that the appeal is from the “judgment . . . granting defendant’s motion to quash service оf summons ... ” it is obvious from the record that the reference is to the court’s “order” to that effect and the parties herein have so considered it. We do likewise. (Cf.
Vallis
v.
Canada Dry Ginger Ale, Inc.
(1961)
The order provided that service be made by personally delivering to the Secretary of State of California or his deputy a copy of the process together with a copy of the order. Code Civ. Proc., § 411, subd. 2, provides that in a suit against a foreign corporation, doing business in this state, summons must be served by delivering a copy thereof in the manner provided for by §§ 6500 to 6504, inclusive, of the Corp. Code. These sections of the Corp. Code provide for the methods of effecting service of process on foreign corporations. Section 6501, utilized in the instant action, provides for the instances in which a service may be made upon the Secretary of State.
The attachment which is before us was a printed form of “Sales Agreement” used by plaintiff.
Plaintifi agreed: “(1) To promote the sale of the products of the said party of the second part actively. (2) To supply the said second party on request with complete list of the jobbing trade solicited by the said first party of the first part within the hereinafter specified territory. (3) To have a representative of Detsch and Company call personally upon the jobbing trade within the territory hereinafter specified and at such times to display or distribute such samples and advertising matter as are furnished by the said party of the second part. (4) To exercise discretion in selling only to trade of good financial standing whose accounts are acceptable to the said party of the second part. And assist in making collections. (5) To maintain in the City of San Francisco, State of California a general sales office and display room, and, report to the said second party, on request, as accurately as possible, general market conditions, complaints, adjustments, etc. ’ ’
A photostatic copy of a “memorandum of said agreement’’ is attached to the affidavit and incorporated therein by reference. This consists of a letter to plaintiff allegedly signed by defendant’s affiant Mr. Dewees stating in part: “In reference to recent conversation regarding agreement for representing us on the West Coast, we wish to advise that the same agreement that you have with the Albion Manufacturing Compаny will apply. ’ ’
These are alleged to be as follows: (a) The maintenance in San Francisco of a general sales office and display room for defendant’s products; (b) plaintiff’s promotion, as defendant’s exclusive agent, of the sale of defendant’s products by active solicitation of customers throughout California; (c) defendant’s supplying plaintiff with samples and advertising matter; (d) plaintiff’s exercise of discretion in selling to the trade and its assisting defendant in the collection of open accounts; (e) plaintiff’s reporting of market conditions to defendant.
It is also noteworthy that defеndant confronted with the same allegations in plaintiff’s complaint, makes no attempt to controvert the existence of such an agreement by appropriate allegations or denials.
The prayer of the affidavit states; “Wherefore, defendant corporation prays that the above entitled court adjudicate that the defendant corporation is not doing business in the State of California nor has it ever done business in the State of California in such a manner as to make said corporation amenable to the process of a California court,
It is also to be nоted, as pointed out already, that even in its own affidavit, plaintiff states that the "functions” performed for defendant (see fn. 6, ante) were performed only until January 18, 1962.
Chapter 3 of part 11 (tit. 1, div. 1) of the Corp. Code (§§ 6403-6407) prescribes the procedure prerequisite to a foreign corporation’s transacting intrastate business in California.
It is noteworthy that § 6403 dealing with qualifications of foreign corporations states in relevant part: “A foreign corporation shall not transact intrastate business in this State without having first obtained from the Secretary of State a certificate of qualification....” (Italics added.)
Robbins
v.
Taxing District of Shelby County, supra,
headed a long line of so-called ‘
‘
drummer
’ ’
cases holding that a tax imposed upon the 'solicitation. of interstate business was a tax upon interstate commei’ee itself. As
Robbins
stated
“
[t]he negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. ’ ’ (P. 497 [7 S.Ct.
592, 30
L.Ed. at p. 697].)
For
a partial list of eases following
Robbins
see
Memphis Steam Laundry Cleaner, Inc.
v.
Stone
(1952)
It is also to be noted that plaintiff nowhere alleges that the initial Detseh-Albion agreement was entered into in California so as to constitute a California intrastate transaction. The agreement itself does not state where it was entered into and it is perfectly consistent with plaintiff’s allegations and with the agreement that it was finally effected by defendant’s officer in Philadelphia. (Cf.
Thorner
v.
Selective Cam Transmission Co., supra,