76 S.E. 117 | S.C. | 1912
October 30, 1912. The opinion of the Court was delivered by *105 The plaintiffs, who are residents of this State, brought this action against defendant, a foreign corporation, doing business in this State, to recover $353.38 damages alleged to have been sustained by them on account of the unsoundness of a carload of corn sold to them by defendant through E.C. Chapman, a broker, residing at Cross Hill, S.C. The corn was to be and was delivered to plaintiffs at Lota, S.C. They paid for it, and began to unload the car, when, as they allege, they discovered that only a small quantity of corn on top of the bulk in the car was good and of the quality they contracted for, while the entire mass beneath was mildewed and unsound, so that it was unfit for use, and it was, for that reason, condemned by the commissioner of agriculture, who ordered that three-fourths of it be destroyed, and that the rest be used only for feeding certain kinds of stock.
For the purpose of obtaining a personal judgment against defendant for the damages claimed, plaintiffs caused the summons and complaint herein to be served on J.W. Ropp, a broker, residing at Cross Hill, S.C. claiming that he was the agent of defendant in this State.
The defendant put in a special appearance, and moved to vacate the service, on the ground that Ropp was not its agent. The motion was heard on affidavits. The Court found that Ropp was defendant's agent; and, therefore, held that the service was good.
As this is an action at law, this Court has no power to review the findings of the Circuit Court, unless it is wholly unsupported by evidence. Hester v. RaisinFert. Co.,
There is more of conclusion than of fact stated in the affidavits. It matters not, however, that defendant's general manager swears that Ropp was not defendant's agent and *106 that he had no authority to accept service of legal papers for defendant, or that plaintiffs' witnesses swear that he was defendant's agent. If we accept as competent evidence only the facts stated, and the inferences fairly and legally deducible from the facts and circumstances appearing in the affidavits, it cannot be said that the finding of the Circuit Judge is wholly unsupported by evidence.
E.C. Chapman swears that at the time of the sale of the car of corn to the plaintiffs, and for some time prior thereto, he was employed by defendant, as its agent, to solicit from citizens of Laurens county contracts for the sale of corn and other provisions; that he sold the car of corn to plaintiffs and received a check from them for the price, which he forwarded to defendant; that when the corn arrived at Lota, S.C. he inspected it, and, finding it damaged, he reported the fact to defendant, whereupon they removed him from being their agent, and appointed Ropp to act as their agent in the sale of corn, etc. Numerous witnesses swear that, at the time the service was made upon him, and for some time prior thereto, Ropp was the agent of defendant and was soliciting orders for grain and other provisions for the defendant, and that such orders were filled by the defendant. It appears also that, in taking orders, Ropp used bill heads with defendant's name thereon, and that defendant billed out the goods ordered on similar bill heads. In his affidavit, Ropp says, "that he represents the Adams Grain and Provision Company, defendant, at Cross Hill, S.C. on commission only, receiving brokerage fees of three dollars for each car of corn sold and ordered through the defendant herein."
From the facts stated it is clearly inferable that Ropp's relation to defendant was not merely that of a broker negotiating a single transaction, but that, as he expressed it, he represented the defendant at Cross Hill; that is to say, that he was employed by defendant to solicit custom for it under *107
agreement that he was to be paid a commission on sales made, and it is also inferable that Ropp would get his commissions on all sales made to customers at Cross Hill by defendant, whether the orders were sent in by Ropp or not, and that defendant paid these commissions, and not the local merchants. He must have had authority to quote prices and terms, and in doing so and in making representations as to the quality of the goods sold, he was clearly representing the defendant. Therefore, he had authority to contract for defendant. Where a person has authority to contract for a foreign corporation, he is certainly its agent for the purpose of accepting service of process under our statute. But, in Jenkins v. Bridge Co.,
Generally speaking, a broker is an agent. 19 Cyc. 191 etseq. It is a matter of common knowledge that some of them are invested with more authority than others. In some instances, their authority is limited to the finding of a buyer or seller of a specific thing at a given price, — and is further limited to the single transaction, so that when it is completed, they no longer represent their principals in any sense of the word; on the other hand, it is equally well known that the scope of their authority and the duration of their appointment is often more extensive, and that they are not only invested with authority to make contracts, binding *108 upon their principals, but also with discretion as to the terms thereof. So that, because Ropp was merely a broker, it does not follow that his authority to represent the defendant began and ended with the consummation of each sale. If that were so, why did the defendant discharge Chapman and employ Ropp?
It will not be necessary to the decision of this case to decide the question whether service upon "any agent" of a foreign corporation, within the State, as provided in section 155 of the Code, hereinafter quoted, would be sufficient to give the Court jurisdiction to render a personal judgment against the corporation. The real question for decision here is: Was Ropp an agent sufficiently representative of the defendant that, under the facts and circumstances, and the law of the State, under which the defendant entered into the State to do business, and to which it thereby impliedly assented and impliedly agreed that it should control in its dealings with the citizens of this State, the Court might reasonably and justly infer authority on his part to receive service for the defendant? The question is not whether such authority was expressly conferred upon him, for express authority to that end is not prerequisite to the validity of the service; for, as said by Mr. Justice Peckham, inConn. Mut. Life Ins. Co. v. Spratley,
Subject to some exceptions, not necessary to mention here, as they do not apply to this case, the States may prohibit foreign corporations from doing business therein altogether.
It follows that they may impose such conditions upon the privilege of doing business therein by such corporations as they think proper, no matter how onerous, or even how arbitrary they may be. Ins. Co. v.Bradley,
In the light of this principle, let us see what conditions have been imposed by the legislature of this State, and, impliedly agreed to by defendant, as evidenced by the act of entering the State and doing business therein. The second paragraph of section 155 of the Code of Procedure provides the manner in which services of process may be made upon foreign corporations in the following language: "Such service can be made in respect to a foreign corporation only when it has property within the State, or the cause of action arose therein, or where such service shall be made in this State personally upon the president, cashier, treasurer, attorney or secretary, or any agent thereof." The general policy of the State with respect to foreign corporations and conditions upon which they are allowed to do business therein will be found in chapter XLIV of volume I, Code 1902. One of the conditions therein prescribed is that each such corporation shall file with the Secretary of State a written stipulation or declaration, designating its principal place of business within the State, where legal papers may be served upon it, and the manner of such service is therein prescribed. Another condition precedent is that all actions, arising out of business done or contracts made with the citizens of the State, commenced in the Courts of this State, shall be tried therein, and said Courts shall have exclusive jurisdiction of such actions, saving the right of appeal to the Supreme Court of the United States. *111
It follows that the doing business within the State by defendant creates an implied agreement on its part that service of process upon "any agent" of defendant within the State will bring it within the jurisdiction of the Courts of the State, and that their jurisdiction will not be questioned by defendant with regard to any action commenced therein, arising out of any business transaction had or contract made by defendant with any citizen of the State. In other words, defendant has impliedly agreed to waive the right to object to the jurisdiction of the Courts of this State, when sued therein in such actions. The Supreme Court of the United States, whose decisions upon the question involved are controlling authority, has, in several cases, sanctioned the right of the States to enact such statutes as will enable their Courts to acquire jurisdiction of foreign corporations doing business therein on the ground of the convenience of their citizens.
In Lafayette Ins. Co. v. French, 18 How. 404,
In Conn. Mut. Ins. Co. v. Spratley, supra, the case ofLafayette Ins. Co. v. French was cited on this point with approval, and the learned Judge who wrote the opinion added, with regard to the act of Tennessee, which was under consideration in that case: "The act did not provide for an express consent to receive such service, on the part of the company. The consent was implied because of the companyentering the State and doing business therein subjectto the provisions of the act." (Italics added.)
With regard to the justice of such legislation, the same learned Judge said, in the same opinion, at page 619, page 575, L. ed.: "A vast mass of business is now done throughout the country by corporations which are chartered by States other than those in which they are transacting part of their business, and justice requires that some fair and reasonable means should exist for bringing such corporations within the jurisdiction of the Courts of the State where the business was done out of which the dispute arises. It was well said, in Baltimore Ohio Railroad Company v.Harris, 12 Wall. 5, at 83 (
Notwithstanding the propriety and justice of such statutes, the Courts ought not to sanction a method of service which would be tantamount to a deprivation of the defendant of its property without due process of law. In other words, the convenience of the citizens of the State must be subordinate to that principle of natural justice that no man shall be condemned without a hearing, nor his property taken from him without due process of law, which implies due notice of the proceeding against him. Therefore, to acquire jurisdiction of a foreign corporation, doing business within the State, it has been held by the Court, whose decisions are controlling authority in such matters, that the person upon whom the service is made within the State must bear such a representative relation to the corporation that the Court can fairly, reasonably and justly infer from all the facts and circumstances, including the statutes of the State, and the assent to them implied by doing business in the State, an implied legal authority in the person served to accept service of legal process for the corporation. Conn.Mut. Ins. Co. v. Spratley, supra.
Statutes authorizing such service upon foreign corporations are based upon the presumption that those employed by the corporations will be diligent in the discharge of their duties to their employers. Experience fully justifies the presumption, for observation has shown that such service almost invariably results in notice, and an opportunity to defend.
The chief object of service of process is to give notice to the party served of the proceeding against him. And, while we do not mean to say that notice or knowledge of the proceeding alone would be sufficient, without bringing the defendant into Court by legal service, the fact that defendant did have notice of this action in ample time to appear and move to vacate the service, and, therefore, in time to defend on the merits, if it had seen fit to do so, is mentioned as one of the facts of the case disclosed by the record. *115
Taking all things into consideration, there was some evidence to support the finding that Ropp was an agent of such representative character of defendant that the Court below could fairly, reasonably and justly infer that he had authority implied by the law to accept service of process; and, therefore, that the service was good.
The order appealed from is, therefore, affirmed, and the case is remanded to the Circuit Court, with leave to defendant to answer the complaint within twenty days after the service upon the attorneys for appellant of notice of the filing of the remittitur in the Circuit Court.
MR. JUSTICE WATTS disqualified.