2,94
.·REPOBTER.
HAT-SWEAT MANUF'G QO. '/). DAVIS SEWING-MACHINE
Co.
(District Oourt, 8. D. New York, JUIl,e 2, 1887.) 1. PAT1!:NTSFOR INvENTIONS-PENALTms-STAMPING WITHOUTLICENSE-FoB. EIGN CORPORATION-SERVICE.
Service upon a foteigticorporation,madein NewYoi'k upon a "managing agent, "is a valid service on the corporation, under the state law, as upon a persoN. "found" within the. district;
2.
SAME-LOCAL ACTIONS;
In a local action for penalties for stamping articles as patented, without license, recoverable ol;lly in the district where the stamping is don.e, an agent of a foreign corporation who has 'the general management and control within the district of the manufacturing· business in the course of which the stamping is done, is a "managing agent" of the corporation, within the meaning of section 482 of the New York Code of Civil Procedure, and service upon him is a valid service upon the corporation.
'Motion to Set Aside Service of Process. John R. Bennett, for Wetnwre &: Jenner, for defendants. BROWN, J. 'fhis is an action for the recovery of $100,000 penalties alleged to have been incurred under section 4901 of the United States Revised Statutes for stamping·certain patented articles without the plaintiffs'license. Such actions are required by section 4901 to be brought in the district "within whose jurisdiction such offenses may have been committed." The act of stamping being done within the Southern district of New York, the suit could not be prosecuted in any other district. Penilarge v. Kirby, 19 Fed. Rep. 501; affirmed, 20 Fed. Rep. 898, 22 Blatchf. 261. The defendant corporation belongs in Connecticut, where all its officers reside., The process in this cause was served upon Alvin B. Felt, as agent of the defendant company. The company appears specially for the purpose only of moving to set aside the service of the summons as a service upon the company, on the ground that Felt is neither an officer nor a "managing agent" of the company, within the meaning of section 432 of the New York Code of Civil Procedure, which prescribes the mode of serving process upon foreign corporations. For the defendants it is claimed that the provisions of the state statute control, because section 914. Rev. St. U. S., declares that "the practice, pleadings, and forms and mode of proceeding. etc., shall conform as near as may be" to the state practice. In the case of Lung Chung v. Northern Pacific, etc., Co., 19 Fed. Rep. 254, it was held by DEADY, J., that the provisions of the state law, as to the sufficiency of the service of process, were embraced by this section. For the defendant it is insisted that Felt is not a "managing agent" of the defendant company, because he has no special authority to accept the service of the summons, and is not a general representative of the company. His relations to the company are stated in his own affidavit as follows:
HAT-BWEAT HANUF'G CO. 'V. DAVIS SEWING-MACHINE CO.
2-95
"I have charge of the factory in the city of New York, the expenses of the running of which are paid by the said company and myself jointly, and the profits, if any, of which are payable one-half to me. The business which I do, or of which I have charge, In the city of New York, is the stitching of hat-sweat, and doing binding, cording, or braiding work, on various articles. The business of the defendant, Davis Sewing-Machine Company, is the maDufacture of sewing-machines, and their factory and office are at Watertown, . New York." The alleged unlawful stamping of articles forwhicb the penalties are sought to be recovered must be deemed, for the purposes of this motidn, to have been done by Felt in the city of New York, in the course of manufacturing for the joint account of himself and the defendant company.In several actions i'n the state courts, it has been held that the term "managing agent" means a person exercising the functions of im officer, inthe control and management of the company's business, and does not include a person baving charge merely of some special work in behalf of the company; such as a baggage master in respect of baggage, (Flynn v. Hudson River. etc., 6 Row. Pro 308;) or a person employed to make the'purchases of horses and feed, (JiJmerwn v. Auburn R. R .· 13 Hun,150j) or an assistaqt secretary, (Sterett v. Denver, etc., 17 Hun, 316j) or a person having charge only of the transfer of the stock, and the transmission paid in, (Reddington V. Mariposa, etc., 19 HUD, 405;) or a person who merely sells tickets, (Doty v. M'whiganOent., etc.., 8 Abb. In none' ofthe foregoing cases are the facts analogous to the present. The only case somewhat analogous, to which I have been referred, is that of Brew8ter v. Michigan Cent., etc., 00.,5 How. Pr; 183, in which the alleged agent ran the steamer ¥ayflower upon some arrangement with the detendant company for the transfer of its passengers from the railway. In the course of the decision, WELLES. J., observes, (page 186:) "The managing agent u1'on which the summonS may be served must beone whose agency extends to all the transactions of the corporation; one who has or is engaged in the management of the corporation, in distinction from the management ofa particular branch or department of its business." The language quoted is rnuchbroader than that used in the subsequent 'cases, and was not necessary to the decision of the case; since it appeared that the alleged agent was employed with very limited powers, in connection with a very small part of the defendant's business. Assuming, what mayor may not be established upon the tpal. that the stamping complain(l4 of in the present case was a corporate act, so as tosubject the corpotatiljri to a, penalty. in consequence of its relations with Felt, and of the general power and authority conferred on him, justice seems to me to require that Felt, upon the facts statediil his affidavit,should be held to be a "managingllgent" in such business ,()fthe ·corporation. There is no question that he had the management artdcontrol of the manufactory here, and carried on the business out of which the alleged penalties accrued. The adjudications in the state courts have not gone so far as to hold that no agent is a "managing agent" who does not participate in the, management and oontrol of every part of the corporate
296
FEDERAL REPORTER,
business, and of every corporate act. Still less has such a construction of these words been given in any local action like this, where that construction would defeat justice, and, enable a corporation systematically to violatefhe law with im,punity.' . Such a construction, it seems to me, would be unreasonable, and presumably foreign to the intent of the statute, when the words" managing agent" are equaIiy capable of including a case of tlu management and control of that department of the company's business out of which the wrongs proceed. By section 914 of the Unitflq States Revised Statutes, moreover, the state praytice is not to be necessarily adopted in all cases, but only" as near as may be;" that is, so far as is compatible with the administration of justice. The subordinate ,provisions in the state statutes, which would unwisely incuD;l.ber iheadministration of the law in the United the ends of justice in those tribunals, States courts, or tend to should be rejected. Indianapolis,etc., v. Horst, 93 U. S.291, 301. Assumhig, as I have said, tllat tIre illegal stamping was a corporate and the ends of justice defeated, if it act, the law would be should be, held that the corporation, through its agents, can carryon a business, and continuously commit illegal acts within this district. where alonetflOse acts can be punished"and yet have 110 person present within the district to represent.'the corporation sufficiently to compel it to answer W suits for its wrongs. Section 732 of the Revised Statutes provides that suits for penalties may be recovered either" where the penalty has accrued, or in the district where the offender is found." Inthe case of Pentlarge v. Kirby, BUfJra, it was, held, as above stated, that this section wllS.1imited, by the express provisions of section 4901, to the the offense was committed. But section 732 is still apdistrict plicable when the defendant" is found" within the district where the oftEmse was QOmmitted; and the act of March 3, 1875, (18 St. at Large. 470; section 739, Rev. St. U. S.,) recognizes thejurisdiction Of the circuit and district courts over persons "found" therein. Where the statute restricts suits to the district in which the ads are committed, a consistent and reasonable interpretation of the statutes requires it to be held the purposes of such suits, has a "managing that a corporation, agent," and is sufficiently" found" within the district in the person of the individual who has the direction, management, and control Of its business therein, ()ut of which the acts complained of have arisen, and who so far represents the corporation as to make his acts incurring, penalties in that business the acts of the corporation. Estes v. Belford, 22 Blatchf. 1, 22 Fed. Rep. 275; Good, Hope Co. v. Railway Co., 23 Blatchf. 43,22 Fed. Rep. 635; St. Clair v. Oox, 106 U. S. 350, 1 Sup. Ct. Rep. 354; Ex parte Schollenberger, 96 U. S. 369; Railroad 00. v. Harri8, 12 Wall. 65; Salt Lake Oity v. Hollister, 118 U. S. 256, 6 Sup. Ct. Rep. 1055. The motion must be denied.
MANSON
v.
NEW YORK, N. H. & H. R. 00.
297
ltlANSON and others 11.
NEW
YORK,
N. H. & H. R. Co.
(Circuit Court, D. Oonnecticut. June 21,1887.) 1.
Where·a bill of lading designates a particular dock at the port of delivery as the place of discharge, the carrier cannot claim demurrage for detention arising from the state of the elements prior to the vessel's arrival at the particular but, after arrival at the place designated, the consignee takes the risk of.any ordinary vicissitude, or of !JiB major, which may occur to prevent the release of the ship at the expiration of the running days. The master of the schooner S. received on board at Baltimore a cargo of coal to be transported to New Haven, and there delivered at the "Consolidated Road Docks." The' bill of lading provided that lay-days should begin to run 24' hours after arrival at New Haven, and notice thereof to the consignee, and that one daY should be allowed for the discharge of each 100 tons of cargo, after which the cargo consignee or assigne.e should p,ay demurrage at the rate of eight cents a ton per day on the entire cargo until the same was fully discharged. TheS. arrived January 30th, and on the 31st reported to the cOllllignee, who directed .tbe discharge to take place at "Shop Dock, " one. of the cons9lidated docks mentioned in the bill of The entrance to this dock was through a channel about 80 feet wide. Another vessel was ordered in the channel ahead of the S. The S. was towed to the entrance of the channel, and, while waiting for the other vessel to discharge, and 0)1 February 3d, .ice formedin the channel so thick that the S. could not proceed. On February 5th the consignee directed the master to proceed. but he declined unless the consignee paid for opening the channel, and offered to discharge at another dock. On the 16tlJ. the discharge, by agreement, was c.ommenced at another dock, and was completed on the 23d. Held, that 10 days' demurrage. from February 13th to 23d, should. be allowed; affirming the decision of the district court, 26 Fed. Rep. 923.
OF LADING.
2. SAME.
In Admiralty.
William K. Toumsend and John H. Whiitney, for libelants. Johnson T. Platt, for defendants. WALLACE, J. This is a libel in personam for demurrage. The district court decreed in favor of the libelants, and the respondent has appealed. The libelants are the owners of the schooner Sutton, the master of which received on board at Baltimore a cargo of coal to be transported tQ the port of New Haven. By the bill of lading the master undertook to deliver the cargo to the appellant, the consignee therein' named,!lot the "Consolidated Road Docks, New Haven." The clause in the bill oflading, as regards demurrage, is as follows:
" And 24 bours after the arrival at the above-named port, and notice thereof to the consignee named, there shall be allowed for receiving said cargo at the rate of orie day, Sundays and legal holidays excepted, for every hundred tons thereof, after which the cargo, consignee, or assignee shall pay demurrage at the rate of eight cents per ton a day, Sundays and legal holidays not excepted, upon the full amount of cargo, as per this bill of lading, for each and every day's detention. andpro.rata for parts and portions of a day, beyond the days above specified, until the cargo is fully discharged; which freight and demurrage shall constitute a lien upon said cargo." .
