Consolidated Flour Mills Co. v. Roberts

Opinion by LOGSDON, C. Defendant’s .first and principal contention for reversal of this • cause is alleged error of the trial court in overruling its motion to quash service of summons and in denying its plea' to the jurisdiction. In support of this contention it is asserted that Comp. Stat. 1921, sec. 5442, is unconstitutional and void, in that it operates to deprive this defendant of its property without due process of law. That section reads: “Any foreign corporation, doing business in the state of Oklahoma, having failed either to appoint an agent upon whom service of summons or other process may be had, or failed to file in the office of the Secretary of State a duly authenticated copy of its articles of incorporation or character (charter), or having failed to pay the license fee as required by law, then, in the event of said foreign corporation having failed to comply with any of the provisions of the law as above referred to', any person now or hereafter having any cause of action against any foreign corporation may file suit against said foreign corporation in any county in the state, and service of, summons or any. process upon the Secretary of State shall be sufficient to give jurisdiction of the person to any court in this state having jurisdiction of the subject-matter.” The constitutionality of this statute has been upheld by this court against similar contentions in the cases of Title Guaranty & Surety Co. v. Slinker, 42 Okla. 811, 143 Pac. 41, and Kaw Boiler Works v. Frymyer, 100 Okla. 81, 227 Pac. 453. In support of its contention defendant cites and relies upon two cases from the federal court, but these are considered to be readily distinguished from the instant case by reason of the facts. In the case of King Tonopah Mining Co. v. Lynch, 232 Fed. 485, the court had under consideration the question of granting equitable relief against a judgment of which the mining company knew nothing until the time had expired for proceedings to vacate it under state law. In the bill it was disclosed that the complainant had a meritorious defense to the original action, and that valuable, property belonging to it had been seized and sold under the default judgment. The conclusion announced by the court was; “Under all the conditions, I am constrained to1 hold that the service in question did not constitute due process of law. I shall therefore reopen the case, in order that evidence may be introduced on the issue raised by plaintiff’s allegations that he had, and has, a good and sufficient defense on the merits to the action in the state court.” In the case of Knapp v. Bullock Traction Co., 242 Fed. 543, action was originally commenced in the superior court of Los Angeles county, Gal., but after service of process the cause was removed to the federal court. There motions were made to quash service. It was shown that service had been obtained in two ways. There had been personal *103 service upon tlie “business agent” of defendant within tbe state, which the court held to be a valid and effective service. After so holding, the court said: “Although, in view of the holding of the sufficiency of the service on the business agent of defendant, the question of the sufficiency of the service upon the Secretary of State is not necessary to a decision herein, yet, since motion has been made tG- quash it, I am constrained to hold that such motion .should be granted.” Notwithstanding the court had jurisdiction of defendant under a valid service of process on its business agent, and notwithstanding the additional service on the Secretary of State was wholly immaterial, the court- proceeded, in an opinion admittedly dictum, to strike down a statute of the state. In the instant case defendant owned and operated an elevator at Lamont, which was in charge of an agent-manager. Defendant exercised visitorial and supervisory control over its operations through its officers, at least two of whom, the superintendent of elevators and the superintendent of mills, inspected and checked up the business there at irregular intervals, and who gave both written and oral instructions to- the local agent-manager. This course of business dealing continued for about three years prior to the transactions giving rise to this litigation. In International Harvester Co. v. Kentucky, 234 U. S. 579, it was said: “We are satisfied that the presence of a corporation within a state necessary to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the state.” In the case of Kaw Boiler Works v. Frymyer, supra, this court said: “For alleged wrongs done by a foreign corporation, in the course of its business, while in the state, it will be subject. to suits for relief in the actions in personam, commenced after the corporation has terminated its business and departed from the state. If the corporation has failed to appoint an agent for service, the Secretary of State will continue as service agent for process in such actions, as fully and effectively as if the corporation was then engaged in business in the state. Mutual Reserve Fund Life Ins. Ass’n v. Phelps, 190 U. S. 147, 47 L. Ed. 987; Conn. Mutual Life Ins. Co. v. Spratley, 172 U. S. 602, 43 L. Ed. 569; Hill v. Empire State Idaho Mining & Dev. Co., 156 Fed. 797; Gross v. Nich ols, 72 Ia. 239, 33 N. W. 653; Meixwell v. American Motor Car Sales Co., 181 Ind. 153. Ann. Cas. 1916D, 375, 103 N. E. 1071; Reese Lumber Co. v. Licking Coal & Lumber Co., 156 Ky. 723, 161 S. W. 1124: Fletcher, Cyclopedia Corporations, vol. 9, section 6046. page 10425.” In Hill v. Empire State-Idaho Mining & Developing Co., 156 Fed. 797, it appeared that defendant had conducted certain mining operations which it wás alleged caused pollution of a certain stream and its tributaries, resulting in damages to plaintiff. In 1903 defendant disposed of all its property in Idaho and withdrew irom the state. During P-s operations there it had appointed W. H. North as its agent to receive process, under a statute of that state requiring such appointment by a foreign corporation doing business within the state. In 1907 the action was commenced in the state district court and service had upon North. Upon removal of the cause to the federal court defendant appeared specially by motion to quash service. In sustaining the service and the jurisdiction in that case the court said: “My conclusion upon this phase of the case is that it is within the power of a state to provide by statute that before any corporation shall transact business within its borders such corporation shall designate an agent in the state, or consent that the incumbent of a certain office within the state shall be its agent, for the service of process in any suit in the courts of such state involving a controversy growing out of the business transacted by such corporation within the borders of such state, whether such suit be brought before of after the corporation ceases to do business, and that a corporation, having assented to such statutory provisions and designated an agent, must respond to process served upon such agent in the mode prescribed by law.” In the instant case there was no default judgment fo-r equity to relieve against. After its motion to quash and plea to the jurisdiction was overruled, and after its motion to make more definite and certain and its demurrer to the petition were both overruled, it answered to the merits, reserving its exceptions to the prior rulings. Upon the trial on the merits defendant offered no proof in support of its answer, 'but contented itself with a demurrer to plaintiff’s evidence, and elected to rely thereon. This leads to a consideration of the two-questions presented o-n the merits. The first question is as to the sufficiency of the evidence to establish Boyer’s agency for defendant. Upon a demurrer to the evidence in a law act-ion, the question fo-r determination by the court is whether the 'evidence demurred to, together with all inferences *104 and conclusions to be logically drawn therefrom, tends to prove the facts essential to a recovery or defense. Without recapitulating the evidence, hut after a careful reading of the entire record, it cannot be said as a matter of law that the fact of agency was not reasonably established. That defendant got plaintiff’s grain, or its proceeds, and that it has not paid for same, is not seriously questioned. The testimony of Boyer and the railroad agent sho-ws that all the grain received at defendant’s elevator at Lamont was shipped direct to defendant or to its order. The sole contention on this phase of the ease is that Boyer’s agency was not such as to bind defendant by his acts. The evidence of agency was amply sufficient to sustain the action of the trial court on demurrer thereto. In th'e case of National Surety Oo. v. Miozrany et al., 53 Okla. 322, 156 Pae. 651, this court said, in the second paragraph of the syllabus : “When an agent is held out to the world as one having the authority of a general agent, any private instructions or limitations upon his authority in a particular case, not communicated or known to- those dealing with such agent, will not relieve the principal from liability incurred, where the agent oversteps such limitations.” In the body of the opinion, at page 326, it is said : “While, as between the principal and the agent, the scope of the latter’s authority is that authority which is actually conferred upon him by his principal, which may be limited by secret instructions and restrictions, such instructions and restrictions do not affect third persons ignorant thereof; and, as between the principal and thij'd persons, the mutual rights and liabilities are governed by the apparent scope of the agent’s authority, which is that authority which the principal has held the agent out as possessing, or which he has permitted the agent to represent that he possesses, and which the principal is estopped to deny. Merchant’s Bank v. State Nat. Bank, 10 Wall. 604, 19 L. Ed. 1008; Antrim Iron Works v. Anderson, 140 Mich. 702, 104 N. W. 319, 112 Am. St. Rep. 434; General Cartage & S. Co. v. Cox, 74 Ohio St. 284, 78 N. E. 371. 113 Am. St. Rep. 959; Bentley v. Doggett, 51 Wis. 224, 8 N. W. 155, 37 Am. Rep. 827; Fishbaugh v. Spunaugle, 118 Iowa, 337, 92 N. W. 58; Banks Bros. v. Everest, 35 Kan. 687, 12 Pac. 141. Finally, it is contended and urged by defendant that the evidence does not sustain the allegations of plaintiff’s petition in -this, that while plaintiff’s petition sets forth a cause of action in conversion, the evidence shows a sale and resulting action for debt; that this constitutes a latal variance and failure of proof. In construing a pleading for the purpose of determining the nature of the action and the relief sought, all of the allegations should be considered together. A specific statement of facts will always control over a general statement, whether the general statement be or be not considered as a legal conclusion. Whitaker v. Crowder State Bank, 26 Okla. 786, 110 Pac. 776. It is true that plaintiff alleged that defendant “converted said wheat and all of the same to its own use,” but no facts are alleged to sho-w that the original taking was wrongful, or that the conversion was tortious. On the other hand, there are specific allegations of an oral contract between plaintiff and defendant. whereby defendant agreed to- hold said wheat and to redeliver same to plaintiff, or pay him therefor, at the market price at date of election by plaintiff. It is nowhere alleged that plaintiff demanded a return of the specific property, but the allegation is that “plaintiff demanded the said wheat or the price thereof on said date at Lamont, Okla.” The general allegation of a conversion must therefore be regarded as a mere legal conclusion of the pleader, which is controlled by the specific allegations of facts showing the action to be one for the recovery of money had and received by defendant- to plaintiff’s use. “An action wilt lie to recover a sum certain whenever one has the money of another which he in equity and good conscience has no right to retain.” This is the general rule, and it has received application here in many cases, beginning with Allsman v. Oklahoma City, 21 Okla. 142, 95 Pac. 468. Plaintiff’s testimony reasonably tended to show that all wheat stored in defendant’s elevator at Larnont, including that of plaintiff, had been milled or sold by defendant; that when defendant’s superintendent made the final clean-up and check of the Lamont elevator prior to its sale, he took with him to Hutchinson the record of the transaction with plaintiff, but before leaving Lamont stated that the claim o-f plaintiff would have to be paid. There was therefore ample evidence to sustain the action of the trial court in overruling the demurrer to plaintiff’s evidence. Upon the whole record no- reversible error is made apparent, and the judgment of the trial court in affirmed. By the Court; It is so ordered.