Winslow Lumber Co. v. Edward Hines Lumber Co.

COSHOW, J. It is immaterial where the cause of action arose. It is immaterial where the plaintiff has its domicile. The action is a transitory one. Plaintiff may therefore sue the defendant at any place personal service can be made upon defendant: Or. L., §§ 42-44; Fratt v. Wilson, 30 Or. 542, 545 (47 Pac. 706, 48 Pac. 356); State ex rel. v. Tazwell, 123 Or. 326 (266 Pac. 348); Cole v. Canadian Bank of Commerce, 114 Or. 456 (239 Pac. 98); 14a C. J. 1383, § 4099, notes 73 and 74; Barrow Steamship Co. v. Kane, 170 U. S. 100 (42 L. Ed. 964, 18 Sup. Ct. Rep. 526, see, also, Rose’s U. S. Notes). Defendant relies upon the fact that the business transacted by it within the State of Oregon is purely interstate. That fact does not prevent.the defendant from being subject to the jurisdiction of the courts of this state. That fact would prevent the state from exacting a license or charging defendant a fee to enable it to transact interstate business within the state: American Law Institute, Conflict of Laws, Restatement No. 3, tentative, 71, 72, § 182, and comments. If the defendant is here, however, by its *68 agents or officers and is doing business within the state, it is subject to the jurisdiction of the courts of the state, although all business by it transacted is interstate: 8 Fletcher, Corp., 9631, § 5780; Tauza v. Susquehanna Coal Co., 220 N. Y. 259 (115 N. E. 915); International Harvester Co. of America v. Kentucky, 234 U. S. 579 (58 L. Ed. 1479, 34 Sup. Ct. Rep. 944, see, also, Rose’s U. S. Notes). Cone v. New Britain Mach. Co., 20 Fed. (2d) 593, is an interesting discussion of this principle: People’s Tobacco Co. v. American Tobacco Co., 246 U. S. 79 (62 L. Ed. 587, Ann. Cas. 1918C, 537, 38 Sup. Ct. Rep. 233); Green v. Chicago, B. & Q. R. Co., 205 U. S. 530 (51 L. Ed. 916, 27 Sup. Ct. Rep. 595). No hard-and-fast rule has yet been formulated to determine when a foreign corporation engaged in interstate commerce may be sued in a state other than its domicile. It has been determined by the Supreme Court of the United States that the solicitation of business alone is not doing business within a foreign state so as to subject the corporation to the courts of that state or district: Eastman Kodak Co. v. Southern Photo Materials Co., 273 U. S. 359 (71 L. Ed. 684, 47 Sup. Ct. Rep. 400); Hoffman v. Missouri, 274 U. S. 21 (71 L. Ed. 905, 907, 47 Sup. Ct. Rep. 485). There is apparently some conflict in the decisions of the Supreme Court of the United States on this interesting question, but the different cases come so close to the border line that each decision must depend upon its peculiar facts. The decisions are governed also to some extent by local statutes: Sections 528 and 529, Or. L., prescribe the rule for determining when a foreign corporation is doing business within this state. Some decisions of this court seem to *69 have hinged upon the question whether or not the business transacted by a foreign corporation was interstate: Deardorf v. Idaho Nat. Harvester Co., 90 Or. 425 (177 Pac. 33); Major Creek Lbr. Co. v. Johnson, 99 Or. 172, 183 (195 Pac. 177); Berlin et al. v. Mattison, 69 Or. 470 (139 Pac. 330). As is clearly pointed out in International Harvester Co. v. Kentucky, above, this is not the sole or exclusive test. If a foreign corporation was doing intrastate business there would be no room for controversy, but it does not follow that such a corporation engaged exclusively in interstate commerce may not be subject to the courts of the state in which it engages in interstate business. The record indisputably discloses that defendant maintained an office in the Yeon Building, Portland, Oregon; that O. L. Hall is its representative or agent in the State of Oregon; that he is paid a regular salary by the defendant company; that the defendant company also maintains one stenographer to whom it pays a regular salary; that it keeps a bank account, the money being deposited' by its agent, said Hall, and checked out by him; that it purchased an automobile through said Hall who entered into a contract for the payment of the same, signing the contract, “Edward Hines Lumber Company,” by “C. L. Hall”; that said Hall uses the letter-heads of said defendant company with the word “Chicago” marked with two red lines, and the words, “Portland, Oregon,” printed below in red type; that this letterhead also has the following printed in red type; “Represented by O. L. Hall, Yeon Building, Portland, Oregon”; that on the door of said office is the name of defendant corporation; that November 15, 1924, said defendant wrote to Sullivan Lumber Company, North *70 western Bank Building, Portland, Oregon, the following letter: “Confirming telephone conversation this morning, we are sending you the following orders — * * . Must be good stock. Ten days or less shipment. Yours very truly, Edward Hines Lumber Company. (Off to one side) C. L. Hall (and under ‘C’ the initials ‘FP’).” Another similar letter is addressed to the same company dated December 9, 1924. This letter is also addressed from Portland and contains the phrase: “Confirming telephone conversation, we are sending you the following order — ” signed by Edward Hines Lumber Company, by C. L. Hall. There is in the record also another letter on the same kind of a letterhead addressed to Griswold Lumber Company, signed by Edward Hines Lumber Company, by C. L. Hall, canceling an order formerly given by defendant corporation to said Griswold Lumber Company. There is also in the record a carbon copy of a letter admitted to have been written by Edward Hines Lumber Company addressed to Snider & Sons Lumber Company, Clatskanie, Oregon, as follows: “Your letter of the 7th in regard to Fir timbers is being referred to our Portland Office, located 1109 Yeon Bldg. Mr. Hall, our Portland representative, who buys practically all of our West Coast products, will be very glad to take the matter up with you when we are in the market for any fir timbers in the longer lengths. Very truly yours. Edward Hines Lumber Co. J. H. Vanlandingham (under which are the initials in small type) ehm.” In the record is a stipulation which, among other things, states: “ * * the only activities carried on by the defendant in the state of Oregon are that defendant buys *71 lumber from sawmills or others in the state of Oregon, all of which lumber is immediately shipped by the sellers thereof to the order of the defendant outside of the State of Oregon, and none of said lumber is re-manufactured or worked in Oregon and defendant does not sell or handle lumber or other products in the state of Oregon, * * ” The business of defendant corporation is buying and selling lumber. A substantial part of its business is done in Oregon. We think all of these activities taken together and the manner of conducting its business within this state constitutes doing business within the state and that the defendant corporation is amenable to the courts of this state, either in actions arising within the state or transitory actions, regardless of where they arose: Eastman Kodak Co. v. Southern Photo Materials Co., above. Defendant further contends that if defendant may be considered to be doing business in this state, the record does not show proper service on it. Defendant contends that since it had no duly appointed agent authorized to accept service, the only way it could be lawfully served was by leaving the papers with the corporation commissioner, under Section 6908, Or. L. This section is a part of the statute regulating foreign corporations doing business within the state. This applies only to corporations that are doing business as that term is used in the statute requiring such corporations to pay a fee and secure a license. Defendant has not complied with that law and contends in the instant case that its business is entirely interstate in nature. The record supports that contention. For that reason Section 6908, above, does not apply to the defendant. Defendant admits that C. L. Hall is its representative in this state. *72 We think the service on Mr. Hall is sufficient: Or. L., § 55. The record shows that neither the president or other head of the corporation, secretary, cashier or managing agent is within this state. The summons was therefore properly served upon the agent of the defendant company within the county in which the action was pending: Deardorf v. Idaho Nat. Harvester Co., 90 Or. 425 (177 Pac. 33); American Law Institute, Conflict of Laws, Restatement No. 3, tentative, 71, 72, § 182 and comments. The judgment of the Circuit Court is reversed and the cause remanded for further proceedings consistent with this opinion. Reversed and Remanded. Rand, C. J., and McBride and Rossman, JJ., concur.