pany; that the train despatcher of the Pacific company, located on its lines at Chickasha, in the Indian territory, is also train despatcher of the Gulf company. He was a "joint man," as the trains were operated by the same crews across the Texas state line without stopping; that the movements of trains on the Gulf route are directed from Chickasha as are those on the line of the Pacific company after they cross the state line going northward. The daily reports of the cars on the Gulf line are made to the chief despatcher at Chickasha; that the business could not be handled in any other way.

Rock Island, & Gulf Railway Company, many years an employee of the Pacific comafter its purchase of the Texas company, running and handling such trains between Fort Worth, Texas, and Caldwell, Kansas. That the run of said Thomas is now and has been from Fort Worth, Texas, to Caldwell, Kansas, as aforesaid, on both sides of the state line, and that Caldwell, Kansas, is the end of the first passenger division on said lines north of Fort Worth. And it is further agreed that V. N. Turpin, upon whom process was served herein as the ticket agent of the defendant company, was, at the date of the service of said process and has been for a long time, ticket agent of the Chicago, Rock Island, & Gulf Railway Company at Fort Worth, engaged in selling tickets for the said Chicago, Rock Island, & Gulf Railway Company, over its lines and also over the lines of the Chicago, Rock Island, & Pacific Railway Company and all of its connections. It is further agreed that the facts are that "Thomas is carried on the Pacific company's pay roll and paid for services rendered while on that company's line north of the Texas state line; and is carried on the Gulf company's pay roll and paid by the Gulf company for services rendered on its line south of the Texas state line; and that Turpin is carried on the Gulf company's pay roll alone, and is not carried on the Pacific company's pay roll, and is not an agent of the Pacific company, unless the above-stated facts make him one.' "

The annual report of the Pacific company shows that the board of directors of said company consists of thirteen members, with an executive committee of eight members.

The report of the Rock Island company shows that the board of directors of said company consists of sixteen members and its financial committee of six members.

Eleven members of the board of directors of the Pacific company are also members of the board of directors of the Rock Island company. Five members of the executive committee of the Pacific company are also members of the finance committee of the Rock Island company. The officers of the Rock Island company, with two exceptions, are also officers of the Pacific company, and a majority of the officers of either said companies are common to both of them.

S. B. Hovey, upon whom service was made as aforesaid, was also produced as a witness, and testified that at the time of the service of citation upon him he was the vice president and superintendent of the Gulf railroad company, and resided at Fort Worth, Texas; that he held the same posi- | tion in the Chicago, Rock Island, & Texas Company before it acquired the Gulf company, and before that time he had been for

The

Settlements between the two companies are made on a mileage basis. Reports are made by the officers of the Gulf company to Mr. Winchel, who is president of the Gulf company and of the Pacific company. Gulf company keeps a fund on deposit with the Pacific company at Chicago and receives interest thereon; that when the defendant company constructed its line of road across the Red river in 1892 the Texas company was organized, and the Pacific company furnished the money with which the road was constructed south from Red River to Fort Worth. Most of the directors of the Texas company were employees of the Pacific company. pany. No dividends were paid on the stock of the Texas company, and when the Gulf company took over its property the directors surrendered their stock in the old company and got back their $5.00 each; that the transfer to the Gulf company of the Texas road, the El Paso road, and the Mexico road was for the purpose of consolidating these roads and getting under one management the management of the system. The employees who run over both the Pacific and Gulf lines while in Texas are employed and discharged by the latter company; north of the Texas line they are employed and discharged by the Pacific company; the operation of trains was then as it had been before the Rock Island & Texas road ceased to exist; that the Pacific company did not pay any part of the salaries of the heads of the departments of the Gulf company,-none for the general office. It, the Pacific company, pays the train men according to the number of miles run on its rails. The Gulf company pays the expenses of the men while on the rails of that company according to the number of miles run; that the Rock 1sland & Gulf Company had separate cars, servants, and agents of its own; that the Gulf company lines booked trains daily between Fort Worth and its northern terminus and back, which trains do not run on the lines of the Pacific road. He also testified that

Mr. M. A. Low for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This case presents a question of jurisdiction to be determined as one of fact. It may be divided into two propositions: First. Was the Pacific company doing business in the state of Texas? Secondly. If so, were the alleged agents served with process in the state of Texas duly authorized as such, and competent to be thus served, in such wise as to give jurisdiction of the Pacific company?

The statutes which concern service on corporations in the state of Texas are as follows (Sayles' Texas Civil Statutes):

"Art. 1194, § 25. Foreign private or public corporations, etc.-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 the state having jurisdiction over the subjectmatter, in any county where the cause of action or a part thereof accrued, or in any county where such company may have an agency or representative, or in the county in which the principal office of such company may be situated; or, when the defendant corporation has no agent or representative in the state, then in the county where the plaintiffs or either of them reside."

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 Paso; the Choctaw, Oklahoma, & Gulf; the Chicago, Rock Island, & Texas; and the Chicago, Rock Island, & Pacific, were not operated as one road, but were operated separately; that the revenues were divided, just as revenues earned by the Chicago, Rock Island, & Gulf and T. & P. would be divided; that they were divided on a mileage basis; that no reports were made by the Gulf company to the head of the traffic department of the Pacific company; that reports were made by the Gulf company to the president of the Gulf company, who was also president of the Pacific company; that no representative of the Pacific company was sent to examine the books of the Gulf company further than just as a representative of any other connecting line would occasionally check up business with the Gulf company; that the books of the latter company had never been audited from the Chicago office; that there was no contract between the Gulf company and the Pacific company, except a traffic agreement as to the division of rates, made by the general freight agent of each line, of the same character of contract which exists between the Gulf company and other line with which it interchanges business; that the Gulf company owned about 1,500 or 1,600 freight and cattle cars and about twenty engines, which were marked C. R. I. and G.; the train despatcher has no power to furnish cars on the Gulf road if I instruct him not to do so; that since he had been vice president of the Gulf company he had had no connection whatever with the Pacific company and no duties to perform with any other railroad than the Gulf company; that for traffic hauled over the two lines the Gulf company received the amount agreed upon by the general freight agents in the same manner that the Gulf company and the T. and P. divided the revenues; that neither road pays any part for moving freight over the other line, nor pays any part of the loss sustained while in the hands of the other company by damage to freight; that the Gulf company has on deposit with the Pacific company several hundred thousand dollars, for which it receives 6 per cent interest When needed it is checked out. A copy of the folder of the "Rock Island system's" lines was sent up with the record. A copy of the map shown on the folder is printed on the freight window of the office of the agent of the Gulf company and calendars with that map printed on them are distributed for the purpose of advertising the system lines.

per annum.

"Art. 1223. Foreign corporations, how served.-In any suit against a foreign private or public corporation, joint stock company, or association, or acting corporation or association, citation or other process may be served on the president, vice president, secretary, or treasurer, or general manager, or upon any local agent within this state, of such corporation, joint stock company, or association, or acting corporation or association."

By the act of March 13, 1905 (General Laws of Texas, 1905, p. 30), an additional method of serving foreign corporations was provided as follows:

"Sec. 2. That service may be had on foreign corporations having agents in this state in addition to the means now provided by law by serving citation upon any train conductor who is engaged in handling trains for two or more railway corporations, whether said railway corporations are foreign or domestic corporations, if said conductor handles trains over foreign or domestic corporations' tracks across the state line of Texas, and on the track of a domestic railway corporation within the state of Texas, or upon

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 over any line of railway or part thereof, or steamship or steamboat of any such foreign corporation or company.

"Sec. 3. For the purpose of obtaining service of citation on foreign railway corporations, conductors who are engaged in handling trains and agents engaged in the sale of tickets or the making of contracts for the transportation of property as described in § 2 of this act, are hereby designated as agents of said foreign corporations or companies, upon whom citation may be

served."

It is settled by the decisions of this court that foreign corporations can be served with process within the state only when doing business therein, and such service must be upon an agent who represents the corporation in its business. St. Clair v. Cox, 106 U. S. 350, 27 L. ed. 222, 1 Sup. Ct. Rep. 354; Goldey v. Morning News, 156 U. S. 518, 521, 522, 39 L. ed. 517, 519, 15 Sup. Ct. Rep. 559; Conley v. Mathieson Alkali Works, 190 U. S. 406, 47 L. ed. 1113, 23 Sup. Ct. Rep. 728. It is contended upon the part of the plaintiffs in error that the Pacific company was doing business in the state of Texas, because of a partnership arrangement with the Gulf company, or because the latter company was the agent of the Pacific company, or, as is sometimes said, the representative of the Pacific company in the state of Texas. As to the question of partnership, we do not think this record presents a question of that sort. The suit is not for a partnership liability. It is an action upon a single cause of action for the tort of the Pacific company. Service is not had by serving one

partner. The real contention is that the

service reaches the Pacific company because

of the agency or representative character of the Gulf company.

It is true that the Pacific company practically owns the controlling stock in the Gulf company, and that both companies constitute elements of the Rock Island system. But the holding of the majority interest in the stock does not mean the control of the active officers and agents of the local company doing business in Texas. That fact gave the Pacific company the power to control the road by the election of the directors of the Gulf company, who could, in turn, elect officers or remove them from the places already held; but this power does not make it the company transacting the local business.

This record discloses that the officers and agents of the Gulf company control its management. The fact that the Pacific company owns the controlling amount of the stock of the Gulf company and has thus the power to change the management does not give it present control of the corporate property and business. Pullman's Palace Car Co. v. Missouri P. R. Co. 115 U. S. 587, 597, 29L. ed. 499, 502, 6 Sup. Ct. Rep. 194.

In Conley v. Mathieson Alkali Works, supra, suit was brought upon a contract with the Mathieson Alkali Works. The defendant had designated no agent upon whom summons could be served, and service was made upon two members of the board of directors resident of the city of New York. Upon motion made to set aside the service of summons a reference was directed to ascertain whether the defendant corporation was doing business in the state of New

York.

The master reported, among other things, that the defendant had operated a plant at Niagara Falls, but had conveyed all its property to another corporation or

ganized under the laws of Virginia. That

the consideration expressed for the conveyance was $1 and other valuable consideration, but the substantial consideration was the entire capital stock of the grantee, the Castner Electrolytic Alkali Company. That the business of the defendant since said transfer was carried on in Providence, where it had its principal place of business. The master found that the company at the time of attempted service was not doing busi

Is it true that the Gulf company was the agent of the Pacific company or its mere creature in such a sense that to serve it is equivalent to serving the controlling company? It is a fact that both companies had common agents and employees to a certain extent, but the record shows that such employees were paid in proportion to the business in New York. Of the effect of the ness done for each company. And that while in the service of the companies respectively they were under the exclusive management and control of the company in whose service they were engaged, with no power to discharge or employ the one company for the other; and that, although the service was in a sense common, it was kept distinct and separate in the control and payment of the

transfer of the entire stock of the new company to the defendant the master found: "The fact that it held the entire capital stock of the Castner Electrolytic Alkali Company, and that the operations of that company were carried on under the same management as before December 31, 1900, is not material. The new corporation was a 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 have been for all practical purposes merely the instrument of the defendant corporation. People v. American Bell Teleph. Co. 117 N. Y. 241, 22 N. E. 1057; United States v. American Bell Teleph. Co. 29 Fed. 17."

Upon exceptions the master's report and conclusions were affirmed and the service set aside. That judgment was affirmed in this court. In the course of the opinion, Mr. | Justice McKenna, speaking for the court, coming to deal with the effect of the transfer to the Castner Company, said: "The defendant was competent to convey its property to the Castner Electrolytic Alkali Company and afterwards make the locality of its own business Providence and Saltville. Whether the transfer to the latter company was fraudulent we certainly cannot decide from this record, and the by-law which provided for a monthly meeting in New York could not of itself keep the corporation in New York. The testimony is positive that no business of the corporation was done in New York city after the transfer of the Niagara Falls plant; and that all of the business of the corporation was conducted at Providence, except that of a purely manufacturing character, which was conducted at Saltville.

Nor do we think that the persons served with process are agents of the Pacific company doing the business of the company in Texas. Section 2 of the act of March 13, 1905 (Laws of Texas, 1905, p. 30), is very broad, and would seem to comprehend conductors who handle trains for two or more corporations over foreign or domestic roads across the state lines of Texas and on the track of a domestic railroad within the state of Texas, or upon any agent who has an office in Texas and who sells tickets or makes contracts for the transportation of passengers or property over any line of railroad or part thereof of any such foreign corporation or company; and such companies and agents, by § 3 of the act, are made agents of the foreign corporation or company, upon whom the citation may be served. But it is essential to the validity of such service that the corporation shall be doing business within the state, and that the service be upon an agent representing the corporation Goldey v. with respect to such business. Morning News, and Conley v. Mathieson Alkali Works, ubi supra.

The conductors, one of whom was served, when he crossed the Texas line, this record 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 employpany by the Pacific company, the former ment he was. company transacts the business in Texas, and is a separate legal entity, authorized under the laws of Texas and legitimately carrying on business there.

There is no evidence that the Pacific company may not lawfully hold the stock of the Gulf company, and under the statute of Illinois it seems to be authorized so to do. 3 Starr & C. Anno Stat. (Ill.) p. 3229. It is true that the Pacific company loaned the money to build the road of the Texas company, predecessor of the Gulf company. But, as was well observed by Judge (afterwards Justice) Jackson in United States v. American Bell Teleph. Co. supra: "For one person to supply means for another to do business on is not the doing of that business by the former."

The conduct and control of the business in Texas was intrusted to the Gulf company. As the largest stockholder the Pacific company had an interest in that business, but a separate corporation had been legally created in Texas, with authority to make contracts and control its own affairs and carry

He would also sell tickets good upon its line and over the lines of the Pacific company, but he transacted this business as the agent of the Gulf company. As to Hovey, the record fails to show that he was agent of the Pacific company; on the contrary, it shows that he had no connection with the company, and that his duties were confined to the affairs of the Gulf company. The same is true of Merrell, and as to Sebree, the record shows that for the services rendered as trainmaster he was paid by each company for the service performed by it and had no charge as agent of the business of the Pacific company in the state of Texas.

We reach the conclusion that the Pacific company was not doing business in the state of Texas, and that the attempted service was not upon agents of that company transacting its business in that state in such a sense as to give jurisdiction by service of citation upon them. The judgment of the Circuit Court is affirmed.

Dissenting: The CHIEF JUSTICE and Mr. Justice Moody.

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

tion, Appt.,

V.

CLINTON J. HUTCHINS, Trustee.

Election of remedies-inconsistent claims.

1. The seller in a contract of conditional sale does not, by instituting proceedings to enforce a material man's lien, based upon the mistaken theory that the title has passed to the purchaser, make an election which prevents him from bringing suit in replevin, based on the theory that title still remains in the seller. *

Conditional sale-what constitutes.

2. A contract for the sale of certain rails, cars, engines, and goods, to remain the property of the seller until payment of the note given for the purchase price, is no less a conditional sale because possession was to be, and was, delivered, and it must have been contemplated that the rails would be put down upon a roadway assumed to belong to the purchaser, or because the contract required additional security in the form of first-mortgage bonds of the purchaser.t

[No. 212.]

supreme court, and are not open to dispute, except so far as they depend upon rulings of law, so that the questions for decision here are definite and plain, and there is no need to send the case back for a statement

of facts by the supreme court, although one should have been made. Stringfellow v. Cain, 99 U. S. 610, 25 L. ed. 421; Harrison V. Perea, 168 U. S. 311, 323, 42 L. ed. 478, 482, 18 Sup. Ct. Rep. 129.

The suit was replevin for certain rails, cars, engines, and goods, delivered by the appellant to the Kona Sugar Company, Limited, and sold by a receiver of that company to the appellee with full notice of the appellant's claim. Originally there was a contract for the sale of this property for cash, but the Kona Company having failed to pay, the appellant offered certain "terms in setlement of the contract" previously made, as follows: "We will take in settlement of this contract the sum of $10,000, U. S. gold coin, and the promissory note of the Kona Sugar Company, Limited, for the sum of $37,044.53, in favor of William W. Bierce, Limited, payable six months after date at the Whitney National Bank in New Orleans

Argued March 20, 21, 1907. Decided April 8, bearing interest at the rate of seven and one

A

1907.

PPEAL from the Supreme Court of the Territory of Hawaii to review a judg. ment which reversed a judgment of the Circuit Court of the First Judicial Circuit of that territory in favor of plaintiff in an action of replevin, and ordered judgment for

defendant. Reversed.

See same case below, 16 Haw. 418; on rehearing, 16 Haw. 717.

The facts are stated in the opinion. Messrs. Charles H. Aldrich, Henry S. McAuley, and Henry W. Prouty for appellant. Messrs. David L. Withington, A. B. Browne, Alexander Britton, John W. Cathcart, and William R. Castle for respondent.

Mr. Justice Holmes delivered the opinion

of the court:

half per cent (72 per cent) per annum, and secured by first-mortgage bonds of the Kona Sugar Company, Limited, of par value equal to the note, said bonds being portion of a duly authorized issue not exceeding $200,000. This offer is conditioned upon its acceptance by you, payment of the money, and the delivery of the note, with collateral, before 4 P. M. on Thursday, March 14th, A. D. 1901. Upon such payment being made to us before the hour named, we will deliver to you the bills of sale authorizing you to take charge of the rails, locomotives, cars, scales, and other materials now awaiting delivery, upon the express condition and understanding that said rails, locomotives, cars, scales, and other materials are and shall remain the property of William W. Bierce, Limited, until the full payment of the note above described, according to its terms." This offer was accepted, this contract took the place of that previously made, and the property was delivered.

This is an appeal from a decision upon a bill of exceptions in a case tried by the court of first instance without a jury. Hecht v. Boughton, 105 U. S. 235, 26 L. ed. 1018. 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.