Banister v. Weber Gas & Gasoline Engine Co.

GILL, J. This is ¡a suit on a judgment rendered in January, 1896, by á court of competent jurisdiction in the state of Texas. Plaintiff, a resident of that state, sued the defendant, a Missouri corporation, with its principal office -at Kansas City, to rescind a contract for the purchase of a certain gasoline engine manufactured and sold by defendant, and to recover as damages the amount paid on the machine and other expenses incurred in the effort to make it operate as warranted. The defendant failed to appear before the Texas 'court, a judgment by default was entered against it for $1,340.42; and subsequently this action was brought in the circuit court of Jackson county, this state, where, on a trial before the court without a jury, plaintiff recovered and defendant appealed. I. The sole question is- whether or not the Texas court rendering the judgment upon which this action was brought, •acquired jurisdiction of the person of the defendant. It is conceded that if such jurisdiction was obtained according to the laws of Texas, then the judgment is entitled to the same [531] force and credit in this state as would be attached to it in the jurisdiction where it was rendered. It may be considered as the settled law of this state, that in actions on judgments of a sister state, jurisdictional questions may be here inquired into, even though the record sued on affirmatively recites facts necessary to give jurisdiction. Eager v. Stover, 59 Mo. 87. II. Under the laws of Texas, introduced at the trial, it is provided, that “foreign, private or public corporations, joint stock companies or associations, not incorporated by the laws of this state, and doing business within this state, may be sued in any court within this state having jurisdiction over the subject-matter, * * * in any county where such company may have an agency or representative,” etc. Anri further, that in such suit against the corporation of another state “citation or other process may be served on” (naming several officers) “or any local agent within this state of such corporation,” etc. In the petition or complaint filed in the Texas court it was alleged that plaintiff Banister was a resident citizen of McLennan county, Texas; that the Weber Gas & Gasoline Engine Company was a private corporation duly incorporated under the laws of Missouri; “that said defendant corporation has 'an agency in said McLennan county, Texas, and that 0. Ganutson, a resident citizen of McLennan ■county, Texas, is the local agent and representative of said defendant in Waco, McLennan county, Texas.” In the return of the sheriff who served the process, it wtas certified that he executed the same “by delivering to 0. Ganutson, local agent of the Weber Gas & Gasoline Company, a corporation, the within named defendant, in person a true copy of this writ.” By defendant’s answer, filed in the Jackson circuit court, it was denied that Ganutson, on whom' the Texas process was served, was at 'any time .the local agent for defendant; it was denied that defendant conducted a business in Texas or ever [532] had an agent there upon -whom process could be served. On this latter issue a large amount of testimony was produced before the trial judge, who, 'as already stated, found .the same in favor of plaintiff. That finding is now the principal matter complained of — defendant’s counsel insisting that there was no substantial evidence to prove that Oanutson was defendant’s local agent at Waco, Texas. After a careful consideration of the entire evidence, we must hold this point against defendant. This was a question of fact for the determination of the court sitting 'as a jury; and like the verdict of a jury, the court’s finding must not be disturbed except in the absence of any substantial evidence to. sustain it. -This is not one of these cases. Other than that, it seems to us that the preponderance of the evidence is in support of the court’s finding. The defendant corporation was engaged at Kansas City, Missouri, in -the manufacture of gasoline engines. It sought to introduce these machines into the trade in Texas. Eor this purpose the defendant’s managing officer entered into a correspondence with Oanutson, the proprietor of a foundry at Waco, Texas, and induced him to take the exclusive agency for the sale of the engines in several counties tributary to Waco. To- facilitate sales,- the defendant sold to Oanutson one of 'these engines, and it seems at a reduced price, and which was set up in the latter’s foundry to be used as an exhibit to proposed customers. The agent was furnished with circulars and other advertising matter and requested to solicit trade. On each sale- made within the territory Canutson was to receive a compensation, the exact amount of which is not clear. Thereupon several parties negotiated for the purchase of the engines. Some of these wrote directly to the factory at Kansas City and by the defendant they were referred to Canutson whom it designated as its 'agent -at Waco. It is also shown that Oanutson went so far as to execute in defendant’s name certain written contracts of sale of the machine, designating himself -as defendant’s agent — and [533] this too with the apparent knowledge and consent of the defendant. In short, throughout all the correspondence had between the defendant corporation and Oanntson and between said company .and the several customers residing in said agent’s territory, said Canutson was regarded and treated as the agent and representative of defendant at Waco, Texas. We do not think the evidence justifies the contention -that the relation between the defendant corporation and Oanuteon was that of vendor and vendee. On the contrary, the weight of the evidence, we think, shows that the relation was that of principal and agent, and so the parties themselves treated it. With the sole exception of the 'engine bought by Oanutson for use in Ms own foundry and machine shop at Waco, the machines were negotiated for and purchased by the different parties from the defendant, and in its name — the said Canutson acting merely aá a go-between or intermediate 'agent for the Kansas City corporation; he was. a substitute or person employed to look ‘after and conduct the business operations of the defendant corporation at and .about Waco, and therefore its local agent. III. It appears also on the face of the Tex® record, and overwhelmingly by the evidence in the case, that the defendant w® at the institution of the suit “doing business” within said state, as required by the statute. On the face of the petition there filed, it w® alleged “that said defendant corporation has an agency in said McLennan county, Texas, and that 0. Canutson, a resident citizen of McLennan county, Texas, is the local agent and representative of said defendant in Waco, McLennan county, Texas.” This w® a sufficient showing to support the jurisdiction of the Texas court to render a personal judgment against the defendant. It was at least sufficient to cast the burden on defendant -to disprove these facts of jurisdiction. Having an agency there, and in the hands of a duly appointed agent, fairly implied the transaction of business. [534] The numerous authorities cited by defendant have been examined, but we fail to find in any of them support for its contention here. The record clearly shows that the defendant corporation was conducting its business of selling its engines in the state of Texas; that its place of business was at Waco, Texas, where the defendant had a duly authorized and resident 'agent; that this agent was served with the process or summons directed hy the Texas statute citing defendant to appear and 'answer plaintiff’s complaint and more than this, that said citation was forwarded by 'the agent to his principal at Kansas City, hut defendant saw proper to ignore the summons and failed to make answer. The defendant therefore has had its day in court and must abide the judgment regularly rendered against it. We discover no cause to reverse the judgment entered hy the court below, and it will therefore be 'affirmed. All eoncur.