Schoenith, Inc. v. Adrian X-Ray Manufacturing Co.

BarNhill, J. In tbe judgment entered these specific findings appear: that tbe X-ray Sboe Fitters, Inc., operating under tbe trade name of Adrian X-ray Manufacturing Company, is a Wisconsin corporation; that it is not licensed to do business in North Carolina; that it has no place of business in North Carolina; that it has no process agent in tbe State, and at tbe time of tbe attempted service herein it bad no property within tbe State; that M. B. Adrian, upon whom service of summons was attempted, came to North Carolina at tbe request of tbe plaintiff for tbe sole purpose of repairing said machine; that at said time there was no other representative of said corporation in North Carolina; that tbe only acts done by said Adrian on said trip to North Carolina were in connection with making repairs to said machine and that said Adrian was temporarily in North Carolina at the time of said attempted service; that under the written contract defendant was not obligated to service or repair the machine and that the guarantee period had expired at the time service of summons was attempted; that the installation and repairing of said machine was incident to the sale thereof in interstate commerce; that the servicing or repairing of the machine by Adrian was an isolated act and that at the time of the attempted service defendant was not present in North Carolina and was not doing business in North Carolina and that the acts done by the corporation in North Carolina prior to and at the time of said attempted service were not of such substantial nature as to bring said corporation within the State. While the affidavit testimony was conflicting there was sufficient competent evidence offered to support the facts found by the court below. They are, therefore, conclusive and not subject to review. Parris v. Fischer & Co., 219 N. C., 292, 13 S. E., 540; Brown v. Coal Co., 208 N. C., 50. The conclusions drawn therefrom are supported by the authorities. Soliciting orders to be approved at the home office for merchandise to be shipped in interstate commerce is not doing business within the State. Plott v. Michael, 214 N. C., 665, 200 S. E., 429; People’s Tobacco Co. v. American Tobacco Co., 246 U. S., 79, 62 L. Ed., 587, 101 A. L. R., 133 (note). Upon the facts found the defendant was not in the State in the person of its director at the time of the attempted service of summons. Even •if we concede that compliance by defendant with its contract provisions would constitute “doing business” within the State, its obligations under the contract had expired. The visit of its director to the State thereafter at the request of plaintiff to service the machine constitutes an *392 “isolated act” or an act of “trivial business” wbicb was insufficient to bring the corporation within, the State for the purpose of service of summons. Parris v. Fischer & Co., supra, 23 Am. Jur., 353, 20 C. J. S., 155; People’s Tobacco Co. v. American Tobacco Co., supra; York Mfg. Co. v. Colley, 247 U. S., 21, 62 L. Ed., 963; Consolidated Textile Corp. v. Gregory, 289 U. S., 85, 77 L. Ed., 1047; Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U. S., 516, 67 L. Ed., 372; Cannon v. Time, Inc., 115 Fed. (2d), 423; Truck Parts, Inc., v. Briggs Clarifier Co., 25 Fed., Supp., 602; Merriman v. Martindale-Hubbell, Inc., 36 Fed. Supp., 182. The judgment below is Affirmed.