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Rock Island, & Gulf Railway Company, many years an employee of the Pacific comafter its purchase of the Texas company, pany; that the train despatcher of the Parunning and handling such trains between cific company, located on its lines at ChickaFort Worth, Texas, and Caldwell, Kansas. sha, in the Indian territory, is also train That the run of said Thomas is now and has despatcher of the Gulf company. He was a been from Fort Worth, Texas, to Caldwell,"joint man,” as the trains were operated Kansas, as aforesaid, on both sides of the by the same crews across the Texas state state line, and that Caldwell, Kansas, is the line without stopping; that the movements end of the first passenger division on said of trains on the Gulf route are directed from lines north of Fort Worth. And it is further Chickasha as are those on the line of the agreed that V. N. Turpin, upon whom proc- Pacific company after they cross the state ess was served herein as the ticket agent of line going northward. The daily reports of the defendant company, was, at the date of the cars on the Gulf line are made to the the service of said process and has been for chief despatcher at Chickasha; that the a long time, ticket agent of the Chicago, business could not be handled in any other Rock Island, & Gulf Railway Company at way. Fort Worth, engaged in selling tickets for Settlements between the two companies the said Chicago, Rock Island, & Gulf Rail- are made on a mileage basis. Reports are way Company, over its lines and also over made by the officers of the Gulf company to the lines of the Chicago, Rock Island, & Mr. Winchel, who is president of the Gulf Pacific Railway Company and all of its con company and of the Pacific company. The nections. It is further agreed that the facts Gulf company keeps a fund on deposit with are that "Thomas is carried on the Pacific the Pacific company at Chicago and receives company's pay roll and paid for services ren- interest thereon; that when the defendant dered while on that company's line north of company constructed its line of road across the Texas state line; and is carried on the the Red river in 1892 the Texas company Gulf company's pay roll and paid by the was organized, and the Pacific company furGulf company for services rendered on its nished the money with which the road was line south of the Texas state line; and that constructed south from Red River to Fort Turpin is carried on the Gulf company's Worth. Most of the directors of the Texas pay roll alone, and is not carried on the company were employees of the Pacific comPacific company's pay roll, and is not an pany. No dividends were paid on the stock agent of the Pacific company, unless the of the Texas company, and when the Gulf above-stated facts make him one.' »

company took over its property the directThe annual report of the Pacific company ors surrendered their stock in the old comshows that the board of directors of said pany and got back their $5.00 each; that company consists of thirteen members, with the transfer to the Gulf company of the an executive committee of eight members. Texas road, the El Paso road, and the Mexi

The report of the Rock Island company co road was for the purpose of consolidating shows that the board of directors of said these roads and getting under one managecompany consists of sixteen members and its ment the management of the system. The financial committee of six members.

employees who run over both the Pacific and Eleven members of the board of directors Gulf lines while in Texas are employed and of the Pacific company are also members of discharged by the latter company; north of the board of directors of the Rock Island the Texas line they are employed and discompany. Five members of the executive charged by the Pacific company; the operacommittee of the Pacific company are also tion of trains was then as it had been bemembers of the finance committee of the fore the Rock Island & Texas road ceased Rock Island company. The officers of the to exist; that the Pacific company did not Rock Island company, with two exceptions, pay any part of the salaries of the heads of are also officers of the Pacific company, and the departments of the Gulf company,—none a majority of the officers of either said for the general office. It, the Pacific comcompanies are common to both of them.

pany, pays the train men according to the S. B. Hovey, upon whom service was made number of miles run on its rails. The Gulf as aforesaid, was also produced as a wit- company pays the expenses of the men while ness, and testified that at the time of the on the rails of that company according to service of citation upon him he was the vice the number of miles run; that the Rock Ispresident and superintendent of the Gulf land & Gulf Company had separate cars, railroad company, and resided at Fort servants, and agents of its own; that the Gulf Worth, Texas; that he held the same posi- , company lines booked trains daily between tion in the Chicago, Rock Island, & Texas Fort Worth and its northern terminus and Company before it acquired the Gulf com- back, which trains do not run on the lines pany, and before that time he had been for l of the Pacific road. He also testified that

the lines mentioned on the Rock Island Messrs. D. T. Bomar, S. W. Stewart, J. A. folder as constituents of the Rock Island Templeton, and Sam J. Hunter for plainsystem, namely, the Chicago, Rock Island, &tiffs in error. Mexico; the Chicago, Rock Island, & El Mr. M. A. Low for defendant in error. Paso; the Choctaw, Oklahoma, & Gulf; the Chicago, Rock Island, & Texas; and the Chi. Mr. Justice Day delivered the opinion of cago, Rock Island, & Pacific, were not op- the court: erated as one road, but were operated sepa This case presents a question of jurisdicrately; that the revenues were divided, just tion to be determined as one of fact. It may as revenues earned by the Chicago, Rock Is- be divided into two propositions: First. land, & Gulf and T. & P. would be divided; Was the Pacific company doing business in that they were divided on a mileage basis; the state of Texas? Secondly. If so, were that no reports were made by the Gulf com- | the alleged agents served with process in pany to the head of the traffic department the state of Texas duly authorized as such, of the Pacific company; that reports were and competent to be thus served, in such made by the Gulf company to the president wise as to give jurisdiction of the Pacific of the Gulf company, who was also presi company? ? dent of the Pacific company; that no repre The statutes which concern service on corsentative of the Pacific company was sent to porations in the state of Texas are as folexamine the books of the Gulf company fur- lows (Sayles' Texas Civil Statutes) : ther than just as a representative of any “Art. 1194, § 25. Foreign private or other connecting line would occasionally public corporations, etc.-Foreign private or check up business with the Gulf company; public corporations, joint stock companies, that the books of the latter company had or associations, not incorporated by the laws never been audited from the Chicago office; of this state, and doing business within this that there was no contract between the Gulf state, may be sued in any court within the company and the Pacific company, except a state having jurisdiction over the subjecttraffic agreement as to the division of rates, matter, in any county where the cause of acmade by the general freight agent of each tion or a part thereof accrued, or in any line, of the same character of contract which county where such company may have an exists between the Gulf company and other agency or representative, or in the county in line with which it interchanges business; which the principal office of such company that the Gulf company owned about 1,500 or may be situated; or, when the defendant 1,600 freight and cattle cars and about corporation has no agent or representative twenty engines, which were marked C. R. I. in the state, then in the county where the and G.; the train despatcher has no power plaintiff's or either of them reside." to furnish cars on the Gulf road if I instruct “Art. 1223. Foreign corporations, how him not to do so; that since he had been vice served.-In any suit against a foreign pripresident of the Gulf company he had had vate or public corporation, joint stock comno connection whatever with the Pacific pany, or association, or acting corporation or company and no duties to perform with any association, citation or other process may other railroad than the Gulf company; that be served on the president, vice president, for traffic hauled over the two lines the secretary, or treasurer, or general manager, Gulf company received the amount agreed or upon any local agent within this state, of upon by the general freight agents in the such corporation, joint stock company, or same manner that the Gulf company and the association, or acting corporation or assoT. and P. divided the revenues; that neither ciation.” road pays any part for moving freight over By the act of March 13, 1905 (General the other line, nor pays any part of the loss Laws of Texas, 1905, p. 30), an additional sustained while in the hands of the other method of serving foreign corporations was company by damage to freight; that the provided as follows: Gulf company has on deposit with the Pa

“Sec. 2. That service may be had on forcific company several hundred thousand dol-eign corporations having agents in this state lars, for which it receives 6 per cent interest in addition to the means now provided by per annum. When needed it is checked out. law by serving citation upon any train con

A copy of the folder of the "Rock Island ductor who is engaged in handling trains for system’s” lines was sent up with the record. two or more railway corporations, whether A copy of the map shown on the folder is said railway corporations are foreign or printed on the freight window of the office domestic corporations, if said conductor hanof the agent of the Gulf company and cal-dles trains over foreign or domestic corpuendars with that map printed on them are rations' tracks across the state line of Texas, distributed for the purpose of advertising and on the track of a domestic railway corthe system lines.

poration within the state of Texas, or upon

are

any agent who has an office in Texas, and employees while in the separate service of who sells tickets or makes contracts for the the respective companies. transportation of passengers or property

It is true that the Pacific company pracover any line of railway or part thereof, or tically owns the controlling stock in the steamship or steamboat of any such foreign Gulf company, and that both companies concorporation or company.

stitute elements of the Rock Island system. “Sec. 3. For the purpose of obtaining serv- But the holding of the majority interest in ice of citation on foreign railway corpora- the stock does not mean the control of the tions, conductors who engaged in active officers and agents of the local comhandling trains and agents engaged in pany doing business in Texas. That fact the sale of tickets or the making of contracts gave the Pacific company the power to confor the transportation of property as detrol the road by the election of the directors scribed in § 2 of this act, are hereby desig- of the Gulf company, who could, in turn, nated as agents of said foreign corporations elect officers or remove them from the places or companies, upon whom citation may be already held; but this power does not make served.

it the company transacting the local busiIt is settled by the decisions of this courtness. that foreign corporations can be served with

This record discloses that the officers and process within the state only when doing agents of the Gulf company control its manbusiness therein, and such service must be agement. The fact that the Pacific company upon an agent who represents the corpo- owns the controlling amount of the stock ration in its business. St. Clair v. Cox, 106 of the Gulf company and has thus the power U. S. 350, 27 L. ed. 222, 1 Sup. Ct. Rep. 354; to change the management does not give it Goldey v. Morning News, 156 U. S. 518, 521, present control of the corporate property 522, 39 L. ed. 517, 519, 15 Sup. Ct. Rep. 559; and business. Pullman's Palace Car Co. v. Conley v. Mathieson Alkali Works, 190 u. Missouri P. R. Co. 115 U. S. 587, 597, 29 S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. L. ed. 499, 502, 6 Sup. Ct. Rep. 194. It is contended upon the part of the plain

In Conley V. Mathieson Alkali Works, tiffs in error that the Pacific company was supra, suit was brought upon a contract doing business in the state of Texas, because with the Mathieson Alkali Works. The deof a partnership arrangement with the Gulf fendant had designated no agent upon whom company, or because the latter company was

summons could be served, and service was. the agent of the Pacific company, or, as is made upon two members of the board of disometimes said, the representative of the rectors resident of the city of New York. Pacific company in the state of Texas. As Upon motion made to set aside the service to the question of partnership, we do not of summons a reference was directed to asthink this record presents a question of that certain whether the defendant corporation sort. The suit is not for a partnership lia- was doing business in the state of New bility. It is an action upon a single cause

York. The master reported, among other of action for the tort of the Pacific com- things, that the defendant had operated a pany. Service is not had by serving one

plant at Niagara Falls, but had conveyed partner. The real contention is that the

all its property to another corporation or

. service reaches the Pacific company because ganized under the laws of Virginia. That

the consideration expressed for the conveyof the agency or representative character of

ance was $1 and other valuable considerathe Gulf company.

tion, but the substantial consideration was Is it true that the Gulf company was the the entire capital stock of the grantee, the agent of the Pacific company or its mere Castner Electrolytic Alkali Company. That creature in such a sense that to serve it is the business of the defendant since said equivalent to serving the controlling com-transfer was carried on in Providence, where pany? It is a fact that both companies had it had its principal place of business. The common agents and employees to a certain master found that the company at the time extent, but the record shows that such em- of attempted service was not doing busiployees were paid in proportion to the business in New York. Of the effect of the ness done for each company. And that while transfer of the entire stock of the new comin the service of the companies respectively pany to the defendant the master found: they were under the exclusive management "The fact that it held the entire capital and control of the company in whose service stock of the Castner Electrolytic Alkali they were engaged, with no power to dis- Company, and that the operations of that charge or employ the one company for the company were carried on under the same other; and that, although the service was management as before December 31, 1900, in a sense common, it was kept distinct and is not material. The new corporation was a separate in the control and payment of the separate legal entity, and, whatever may

have been the motives leading to its creation, on its own business. This separate corpoit can only be regarded as such for the pur ration had its own officers, a large amount of poses of legal proceedings. It was that its own property, was responsible for its corporation alone which transacted any busi. contracts and to persons with whom it dealt. ness in this state, notwithstanding it may Nor do we think that the persons served have been for all practical purposes merely with process are agents of the Pacific comthe instrument of the defendant corporation. pany doing the business of the company in People v. American Bell Teleph. Co. 117 N. Texas. Section 2 of the act of March 13, Y. 241, 22 N. E. 1057; United States v. 1905 (Laws of Texas, 1905, p. 30), is very American Bell Teleph. Co. 29 Fed. 17.broad, and would seem to comprehend con

Upon exceptions the master's report and ductors who handle trains for two or more conclusions were affirmed and the service set corporations over foreign or domestic roads aside. That judgment was affirmed in this across the state lines of Texas and on the court. In the course of the opinion, Mr. track of a domestic railroad within the state Justice McKenna, speaking for the court, of Texas, or upon any agent who has an coming to deal with the effect of the transfer office in Texas and who sells tickets or makes to the Castner Company, said: "The de contracts for the transportation of passenfendant was competent to convey its prop-gers or property over any line of railroad or erty to the Castner Electrolytic Alkali Compart thereof of any such foreign corporapany and afterwards make the locality of tion or company; and such companies and its own business Providence and Saltville. agents, by § 3 of the act, are made agents Whether the transfer to the latter company of the foreign corporation or company, upon was fraudulent we certainly cannot decide from this record, and the by-law which pro- is essential to the validity of such service

whom the citation may be served. But it vided for a monthly meeting in New York that the corporation shall be doing business could not of itself keep the corporation in New York. The testimony is positive that within the state, and that the service be no business of the corporation was done in upon an agent representing the corporation New York city after the transfer of the with respect to such business.

Goldey v. Niagara Falls plant; and that all of the Morning News, and Conley v. Mathieson business of the corporation was conducted Alkali Works, ubi supra. at Providence, except that of a purely manu

The conductors, one of whom was served, facturing character, which was conducted at when he crossed the Texas line, this record Saltville.

shows, became the servant and agent of the So, in the case at bar, notwithstanding Gulf company. The ticket agent sold tickthe ownership of the stock in the Gulf com- ets for the Gulf company, in whose employ

He would also sell tickets pany by the Pacific company, the former ment he was. company transacts the business in Texas, good upon its line and over the lines of the and is a separate legal entity, authorized un Pacific company, but he transacted this busider the laws of Texas and legitimately car

ness as the agent of the Gulf company. As rying on business there.

to Hovey, the record fails to show that he There is no evidence that the Pacific com

was agent of the Pacific company; on the pany may not lawfully hold the stock of the contrary, it shows that he had no connection Gulf company, and under the statute of with the company, and that his duties were Illinois it seems to be authorized so to do. confined to the affairs of the Gulf company. 3 Starr & C. Anno Stat. (III.) p. 3229. The same is true of Merrell, and as to Sebree, It is true that the Pacific company loaned the record shows that for the services renthe money to build the road of the Texas dered as trainmaster he was paid by each company, predecessor of the Gulf company. company for the service performed by it But, as was well observed by Judge (after- and had no charge as agent of the business wards Justice) Jackson in United States v. of the Pacific company in the state of Texas. American Bell Teleph. Co. supra: "For one

We reach the conclusion that the Pacific person to supply means for another to do company was not doing business in the state business on is not the doing of that business of Texas, and that the attempted service was by the former.”

not upon agents of that company transacting The conduct and control of the business in its business in that state in such a sense Texas was intrusted to the Gulf company. as to give jurisdiction by service of citation As the largest stockholder the Pacific com- upon them. The judgment of the Circuit pany had an interest in that business, but a Court is affirmed. separate corporation had been legally created in Texas, with authority to make con- Dissenting: The CHIEF JUSTICE and Mr. tracts and control its own affairs and carry Justice Moody.

V.

WILLIAM W. BIERCE, Limited, a Corpora- | ings of fact were taken to be true by the tion, Appt.,

supreme court, and are not open to dispute,

except so far as they depend upon rulings CLINTON J. HUTCHINS, Trustee. of law, so that the questions for decision

here are definite and plain, and there is no Election of remedies-inconsistent claims. need to send the case back for a statement

1. The seller in a contract of conditional of facts by the supreme court, although one sale does not, by instituting proceedings to should have been made. enforce a material man's lien, based upon the

Stringfellow v. mistaken theory that the title has passed to Cain, 99 U. S. 610, 25 L. ed. 421; Harrison the purchaser, make an election which pre- v. Perea, 168 U. S. 311, 323, 42 L. ed. 478, vents him from bringing suit in replevin, 482, 18 Sup. Ct. Rep. 129. based on the theory that title still remains The suit was replevin for certain rails, in the seller. *

cars, engines, and goods, delivered by the apConditional sale-what constitutes.

pellant to the Kona Sugar Company, Lim2. A contract for the sale of certain ited, and sold by a receiver of that comrails, cars, engines, and goods, to remain the pany to the appellee with full notice of the property of the seller until payment of the appellant’s claim. Originally there was a note given for the purchase price, is no less contract for the sale of this property for a conditional sale because possession was to cash, but the Kona Company having failed be, and was, delivered, and it must have been contemplated that the rails would be to pay, the appellant offered certain "terms put down upon a roadway assumed to be in setlement of the contract” previously long to the purchaser, or because the con- made, as follows: “We will take in settletract required additional security in the ment of this contract the sum of $10,000, U. form of first-mortgage bonds of the pur- S. gold coin, and the promissory note of the chaser.

Kona Sugar Company, Limited, for the sum

of $37,044.53, in favor of William W. Bierce, [No. 212.]

Limited, payable six months after date at Argued March 20, 21, 1907. Decided April 8, bearing interest at the rate of seven and one

the Whitney National Bank in New Orleans 1907.

half per cent (71/2 per cent) per annum, PPEAL from the Supreme Court of the and secured by first-mortgage bonds of the

Territory of Hawaii to review a judg. Kona Sugar Company, Limited, of par value ment which reversed a judgment of the Cir. equal to the note, said bonds being portion cuit Court of the First Judicial Circuit of of a duly authorized issue not exceeding that territory in favor of plaintiff in an ac- $200,000. This offer is conditioned upon tion of replevin, and ordered judgment for its acceptance by you, payment of the mondefendant. Reversed.

ey, and the delivery of the note, with colSee same case below, 16 Haw. 418; on re- lateral, before 4 P. M. on Thursday, March hearing, 16 Haw. 717.

14th, A. D. 1901. Upon such payment being The facts are stated in the opinion.

made to us before the hour named, we will Messrs. Charles H. Aldrich, Henry S. Mc- deliver to you the bills of sale authorizing Auley, and Henry W. Prouty for appellant. you to take charge of the rails, locomotives,

Messrs. David L. Withington, A. B. cars, scales, and other materials now awaitBrowne, Alexander Britton, John W. Cath- ing delivery, upon the express condition and cart, and William R. Castle for respondent. understanding that said rails, locomotives,

cars, scales, and other materials are and Mr. Justice Holmes delivered the opinion shall remain the property of William W. of the court:

Bierce, Limited, until the full payment of This is an appeal from a decision upon a the note above described, according to its bill of exceptions in a case tried by the court terms.” This offer was accepted, this conof first instance without a jury. Hecht v. tract took the place of that previously made, Boughton, 105 U. S. 235, 26 L. ed. 1018. and the property was delivered. The facts were found by the trial court and

For purposes of decision the supreme certain conclusions of law were stated, which court assumed that, under the foregoing inthe supreme court of the territory held to strument, the passing of title was subject be wrong. It sustained the exceptions upon to a condition precedent, but intimated that one point which went to the root of the the majority of the court thought otherwise, plaintiff's cause of action, and, upon the if it had been necessary to decide the point. plaintiff's motion coupled with a statement It was not necessary because the court was that it would have no further evidence to of opinion that, if there was such a condipresent at a second trial, ordered a judgment tion, it was lost by what was considered an for the defendant, in order that the case election on the plaintiff's part. The court might be brought to this court. The find below had found that there was no election,

*Ed. Note.-For cases in point, see vol. 18, Cent. Dig. Election of Remedies, $$ 12-15.
#Ed. Note. -For cases in point, see vol. 43, Cent. Dig. Sales, $$ 1321-1335.

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