Appeal from the District Court of the United States for the Southern District of New York.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff is a New Jersey corporation licensed to do business in New York with its principal office in that state in New York City. It manufactures cloth from rayon and acetate yarns.
The defendant is a French corporation. In April, 1932, it sent Xavier Dukers to the United States to act as its agent to introduce to the trade here a linseed oil sizing it manufactured under a process which it claimed made it suitable for use in making the kind of cloth manufactured by the plaintiff. Dukers sold a quantity of this sizing to the plaintiff. After giving it a thorough trial, the plaintiff was dissatisfied with it and informed Dukers that the sizing was not as represented. Dukers promised to make an adjustment. Having failed to get satisfaction from Dukers, the plaintiff wrote, on or about October 7, 1932, to the defendant at Paris, France, that the sizing was not as warranted. On October 13, 1932, Dukers wrote the plaintiff that he was going to France on the 15th of October and expected to be away from New York about two months; that during his absence "the interests of Papeteries Navarre will be taken care of by Mr. Batchelor," with whom the plaintiff was to communicate if necessary, and Mr. Batchelor's New York address was given. Failing to receive a reply to the letter it had written the defendant, the plaintiff, on October 25, 1932, cabled the defendant, "Must have immediate adjustment," and received a reply on October 27th, "Kindly communicate Batchelor." Later the defendant replied by letter dated October 26, 1932, to the plaintiff's letter of October 7th, and after assuring the plaintiff that the trouble "will have our full attention within the terms of your agreement with Mr. Dukers," said that if any "new development happens we confirm that you may consider Mr. Batchelor as our representative."
When no satisfactory settlement seemed possible, the plaintiff brought this suit against the defendant by the service of a summons upon Batchelor in New York.
Batchelor had formerly been in the employ of the defendant in France and Algeria, but not since 1928. He came to New York on October 10, 1932, and was employed by the American Delthirna Corporation. Dukers asked him as a favor to attend to a few matters for the defendant while Dukers was in France. No goods were consigned to him, and all he did was "in the way of uncompensated services of a temporary character regarding dealings with a few customers, not more than six altogether to whom sales had been effected by the export office of Papeteries Navarre in Paris." The defendant had no place of business in New York.
The sizing which Dukers sold was delivered by a trucking company which received it from the export department of the defendant in Paris; stored it in Brooklyn, N.Y., and delivered it to customers as directed by Dukers. The empty barrels were returned to the trucking company by the plaintiff. Invoices for the sizing were sent by Dukers from New York on the billheads of the defendant on which appeared a request that payment be made to Dukers. Checks in payment for such merchandise were deposited by Dukers in his account in a New York bank. The defendant had a small account in this bank that "was opened September 14th, 1932 with a deposit of fourteen hundred dollars ($1400.) which was rapidly reduced thereafter by payments made upon order of Xavier Dukers up to October 17th, 1932 and thereafter upon order of Thomas G. Batchelor." When Dukers left New York on October 15th, the balance remaining in the defendant's account was $66.12, and afterwards $690.15 was deposited to reimburse Batchelor for expenses incurred by him.
On these facts, the order vacating the service upon Batchelor was correct. All that can fairly be said of the transactions of Dukers in this country in behalf of the defendant is that they were of a temporary trial character to determine whether it would be advisable for the defendant to come here to do business. When Dukers left, Batchelor undertook to act as the intermediary between such customers as had unfinished business with Dukers and the defendant in France. He was to receive and transmit information. The only other thing he seems to have done, and that on his own initiative without the knowledge of the defendant, was to write the plaintiff on November 19, 1932, taking exception to some detrimental statements he had heard the plaintiff had made concerning the defendant.
In order to be served with process in New York in a personal action, this foreign corporation had to be doing business within the state in a way to warrant the inference that it had subjected itself to the jurisdiction; and service had to be made on an authorized agent. St. Louis S.W.R.R. Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77. Without a place of business in New York, without being engaged regularly in carrying on business there, and without any license to do business there, it cannot be inferred that this French corporation was within the jurisdiction simply because Batchelor was acting for it in the attempt to adjust a few accounts left over from the transactions of Dukers. He was its representative only for that limited purpose and was the corporation in New York in no other capacity. Davega, Inc., v. Lincoln Furniture Mfg. Co., Inc. (C.C.A.) 29 F.2d 164; Rosenberg Bros. & Co., Inc., v. Curtis Brown Co., 260 U.S. 516, 43 S. Ct. 170, 67 L. Ed. 372; Philadelphia & Reading Ry. Co. v. McKibbin, 243 U.S. 264, 37 S. Ct. 280, 61 L. Ed. 710; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S. Ct. 233, 62 L. Ed. 587, Ann. Cas. 1918C, 537.