Milbank v. Standard Motor Construction Co.

HENDERSON, J.,

pro tem.

This is an appeal by defendant, a New Jersey corporation, from a personal judgment rendered against it after default and subsequent to the denial of its motion made by special appearance to quash service of summons. The affidavit of service attached thereto recited that personal service had been made upon the defendant corporation “by serving Henry W. Runyon, Jr., its California business agent ...” The motion of the defendant challenged the sufficiency of the service of the summons under section 411 of the Code of Civil Procedure, which then read: “The summons must be served by delivering a copy thereof as follows: ... If suit is against a foreign corporation . . . doing business and having a man

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aging or business agent, cashier or secretary within this state: to such agent, cashier or secretary.” Under this provision, to sustain the judgment, it is requisite that the defendant corporation was doing business within the state and that Runyon was its managing or business agent at the time of the service. In considering the motion the court had before it the complaint, summons, notice of motion and the affidavits and counter-affidavits of the respective parties, which, although somewhat conflicting, showed the following facts: The appellant, Standard Motor Construction Company, a corporation, manufactured engines in New Jersey and was engaged in selling some of them to purchasers in this state. In February, 1929, plaintiff’s agent entered into correspondence with defendant which resulted in a contract of purchase and sale for a Diesel engine. Unable to meet plaintiff’s request for a May delivery, the company sent him an engine of similar type, which it had on exhibition in this state at a boat show. The engine, after being installed in plaintiff’s boat, developed mechanical defects. The plaintiff made complaint thereof and shortly thereafter was notified by the president of the corporation that he was sending Runyon, a graduate engineer, as their representative “to aid and assist the customers in California with the maintenance and service of engines theretofore delivered in California”. He was authorized to employ mechanics whenever necessary to do this work. Subsequent to his arrival, by an advertisement in the “Pacific Motor Boat,” the public were urged to see their Pacific Coast representatives, who would tell “why you should have a Standard Diesel”. Runyon’s name and address were given in this advertisement. Runyon was not an officer or stockholder of the defendant corporation and was not authorized by the by-laws or rules and regulations or records of the company to sign and execute contracts. Pursuant to the instructions of the president of his company, in addition to his servicing engines, he had frequent conferences with plaintiff Milbank for the purpose of an adjustment of his company’s difference with him respecting the engine’s defects, and he promised to replace it with one of a later type. Being unable to settle the dispute with defendant to his satisfaction the plaintiff brought this action for breach of contract. Runyon, who received a regular salary, was still actively cn