Mikolas v. Hiram Walker & Sons

MITCHERE, J.

The defendant is a foreign corporation, organized under the laws of the Dominion of Canada, having its principal place of business at Walkerville, in the province of Ontario. It appears at least inferentially, that its business is manufacturing “Canadian Club Whiskey.”

In this action, which is one in tort, the plaintiff sought to subject the defendant to the jurisdiction of the court, pursuant to the provisions of G. S. 1894, § 5200, by serving the summons on one Weil, as its agent. The defendant appeared specially, and moved to set *307 aside the attempted service on the ground that Weil was not in fact its agent. The motion, after a hearing upon affidavits, was granted, and the plaintiff appealed.

The statute does not define the word “agent”; hut, as the service of process goes to the jurisdiction of the court over the person, it must be so construed as to conform to the principles of natural justice, and so that the service will constitute “due process of law.” To do this, the agent must be one having in fact a representative capacity and derivative authority. Such agent must be one actually appointed and representing the corporation as a matter of fact, and not one created by construction or implication, contrary to the intention of the parties. U. S. v. American Bell Tel. Co., 29 Fed. 17 . The use of the word “agent” or “subagent” is not controlling. The actual relation of the parties must be determined from the facts disclosed by affidavits.

A reasonable and justifiable conclusion to be drawn from these affidavits is that the relation between the defendant and Weil is the very common and familiar one between manufacturers and wholesale dealers, by which the manufacturer agrees to sell his goods only to a certain wholesale dealer in a city, who in turn agrees to buy them exclusively from the manufacturer, and to sell them at prescribed prices fixed by the manufacturer, in consideration of which the manufacturer agrees to give the wholesale dealer certain rebates (indiscriminately called “rebates,” “concessions” or “commissions”) from the usual trade prices. The affidavits are not very full or definite on some points, but it is not difficult to spell out of them that the arrangement between the parties was, in a general way, of this character.

If so, there was no relation of principal and agent between them. Neither would have any authority to act for or represent the other, but each was acting for himself as principal. Weil would be buying the goods, as well as selling them again, on ’his own account, and the fact that these purchases and sales were accompanied by some collateral conditions and restrictions would not create the relation of principal and agent between them.

About all the evidence produced by plaintiff in opposition to the motion was the testimony of defendant’s secretary, given on the *308 trial of plaintiff and another for counterfeiting defendant’s trademark, in which he stated generally that Weil was their “representative,” “subagent,” etc., and that defendant sent him the goods “on consignment.” This testimony, having been given in another case, in which the exact nature of the relations of Weil and the defendant were presumably neither involved nor in mind, is far from conclusive. At most, the evidence was conflicting, and the trial court’s conclusion upon the issue of fact cannot be disturbed.

Order affirmed.