214 N.W. 598 | Iowa | 1927
The Syndicate Clothing Company, the petitioner, is an Iowa corporation, with its principal place of business at Cedar Rapids, Iowa, and with a branch place of business at Iowa Falls. The record discloses that the object of the company is that of carrying on a general retail clothing and men's furnishing business, together with the right to buy and sell such real property as may be necessary or required in its business.
In connection with the branch store at Iowa Falls, the petitioner owned real estate on which the business at Iowa Falls was conducted. It desired to sell this real estate, and one of its officers, to wit, Harry Levin, the secretary of the Syndicate Clothing Company, petitioner, employed A.J. Strutz to find a purchaser for the real estate, and agreed to pay him a commission of $500. Strutz found a purchaser to whom the petitioner sold its real estate, and in this action seeks to recover his commission of $500, and to maintain the venue thereof in Hardin County.
Upon the filing of the petition by Strutz, the Syndicate Clothing Company filed its motion for change of venue to Linn *161 County, where it has its residence and principal place of business, alleging that none of the alleged negotiations on which Strutz based his suit grew out of or were connected with any office or agency of the Syndicate Clothing Company's at Iowa Falls, but, on the contrary, that they grew out of and were connected with its office and agency at Cedar Rapids, Linn County, Iowa.
The evidence shows that Harry Levin, secretary of the petitioner-corporation, performed the functions of said office at the home office, and that the negotiations with A.J. Strutz were had with the said secretary by reason of his official position with said corporation, and not by reason of his relationship to the branch office at Iowa Falls or the performance of any act or duty connected with the operation of the branch office of said corporation at Iowa Falls; and that one E. Minger was the acting and operating manager and superintendent of the Syndicate Clothing Company at the branch office at Iowa Falls; and that said Minger had nothing to do with and was not connected in any way with the Strutz transaction.
Two primary propositions are involved: First, did the Syndicate Clothing Company have an office or agency in Hardin County for the transaction of business? Second, was the subject-matter of this action connected with any office or agency of the clothing company's at Iowa Falls? These questions call for a construction of Section 11046, Code of 1924, which reads as follows:
"When a corporation, company, or individual has an office or agency in any county for the transaction of business, any actions growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located."
It is undisputed that the Syndicate Clothing Company had an office and an agency in Hardin County for the transaction of certain business, and that business was the carrying on of a general retail clothing store. It is obvious that the sale of real estate is not connected with, nor does it grow out of, the selling of retail clothing and men's furnishings. It was not engaged in the business of buying and selling real estate, and the only real estate the record shows it ever bought or sold in Hardin County is the real estate purchased, with the building thereon, *162
in which to house its stock of goods, the buying and selling of which constituted its business. The fact that it had received authority to buy and sell what real estate was necessary to house its merchandise cannot, under any reasonable construction, be said to make this a part of the business, or one of the objects for which the corporation was organized. It would have had the right to purchase such real estate as was necessary for the conduct of its business without any special provision in its articles of incorporation therefor. 3 Thompson on Corporations (2d Ed.), Section 2365; Brown v. Bradford,
Did the alleged agreement to pay Strutz a commission of $500, if he should find a purchaser for the real estate, constitute the establishment of an office or agency on behalf of the Syndicate Clothing Company for the transaction of business in Hardin County? This question must be answered in the negative. In the first place, Strutz does not claim to be in the business of real estate brokerage, but, on the contrary, is himself a retail merchant; and at most, the record discloses that the Syndicate Clothing Company requested Strutz, a retail merchant, to find a purchaser, agreeing to pay him $500 therefor. It exercised no control over Strutz, and did not limit his activities to any place or locality, nor did it attempt to direct him in any manner whatsoever.
It cannot be claimed that the Syndicate Clothing Company maintained an office for the transaction of the sale of this real estate; and if there was neither office nor agency, then the venue should have been changed, on motion, to the county of the petitioner's residence.
We have been cited to numerous cases as authority for the prosecution of the suit in Hardin County, but an examination of them will disclose that they are not applicable to the case at bar. The majority of the cases cited involve facts which disclose that a third person dealt with an alleged agent or through an alleged office of the principal's, and such third person brings an action to recover some claim growing out of or connected with the business of the office or agency.
It may serve a useful purpose to review some of our decisions. In Goodman v. Delfs,
Babb v. Herring Motor Co.,
In Locke v. Chicago Chronicle Co.,
In Kabrick v. Case Thresh. Mach. Co.,
In Ockerson v. Burnham Co.,
In Goodrich v. Fogarty,
The case of Milligan v. Davis,
In Gilbert v. McCullough,
The case of Joeckel v. Johnson,
"When, by its terms, a written contract is to be performed in any particular place, action for a breach thereof may, except as otherwise provided, be brought in the county wherein such place is situated." *166
The contract provided that it should be performed in Winterset, Iowa, which is in Madison County.
The case of Mitchell v. Lang Co. (Iowa), 112 N.W. 87 (not officially reported), is not in point. In that case the record affirmatively disclosed that the defendant had an agency in Dallas County which was engaged in its business interests, — to wit, that of selling stallions for breeding purposes, — and there the plaintiff was employed to assist in the business. We held that, inasmuch as the plaintiff was transacting and furthering its business in that county, and the plaintiff transacted business with the agency, the action was properly brought in Dallas County.
In Pleak v. Marks Shields,
It may be observed from the foregoing decisions that the applicable rule as to third persons, dealing through an agency, even though it be of a transitory nature, and only for a short duration, has been construed quite liberally on behalf of such third persons. It likewise appears from our holdings that the defendant has only been held to answer in the county of the office or agency where the claim grew out of the transaction of his business, rather than to isolated transactions. The statute expressly provides that the office or agency must be one for the "transaction of business." (Section 11046.) This phrase has been the subject of much legal comment, and the general rule is that isolated instances do not constitute "doing business" or "transacting business," within the meaning of those terms. 14a Corpus Juris 1273, Section 3979.
In Wickens v. Goldstone,
"The query is, Did the defendant have an office or agency in Webster County, for the transaction of his business, within the meaning of the section? That he had no office there, is not questioned. Had he an agency? Agency may be defined as the relation between a principal and his agent; also, the place of business of an agent. * * * In this case there is nothing to show that the business was to be done in Webster County, more than anywhere else. Defendant simply employed a man living, and who had an office, in Webster County. The office of residence of plaintiff in no way concerned defendant's business. * * * There is not a word to show that any business was to be done in one county more than another. The act does not refer to the agent's place of business, but to the principal's."
As bearing on the principle involved in the case at bar, see, also, Hall Martin v. Chandler,
The facts of the instant case are not in dispute. An officer of the defendant company, a resident of Linn County, said to the plaintiff, a resident of Hardin County:
"If you find a purchaser for the real estate which we own in Iowa Falls, we will pay you a commission."
We hold that, under the common acceptation of the term, the defendant was not "doing business" or "transacting business" through an office or agency in Hardin County, out of, or connected with which, this cause of action arose, and that, *168 therefore, it was commenced in the wrong county, and the motion for a change of venue should have been sustained. — Reversed.
FAVILLE, VERMILION, ALBERT, and KINDIG, JJ., concur.
EVANS, C.J., dissents.