§ 2999. Assistants and deputies of prescribed persons. The distinction between a subordinate agency for the corporation and a mere clerk or assistant of a corporate officer or agent must be kept in mind, for the rules of agency apply to a corporation, including that which prevents delegation of authority.50 Therefore an assistant or deputy must bear a representative relation to the corporation to be competent.51 An assistant or deputy cannot be served as a substitute for his superior unless by virtue of the superior's absence he becomes clothed with the same authority,52 or unless he be himself an officer 53 or one of the agents whom the statute makes competent.54 The deputy of a public officer designated ex officio for service may perform the necessary acts in the name of his superior.55 § 3000.- Ordinary agents and employees in general. The statutes considered in the preceding sections have been such as designated an agent with qualifying words of description so that the agents thus designated were only those at a certain place, or those possessing a certain line of duties or authority, or those standing in some specified relation to a superior or to the cause of action. But some statutes are not thus qualified. They make any agent competent either when the corporation is of a certain kind or for any kind of corporation.56 A statute of the latter kind applying to specified corporations is harmonious with one of general application in which the agency is of a qualified or specific nature.57 When the statute speaks of 50 See §§ 1897, 1951, 1960, supra. 51 See § 2991, supra. 52 Karns v. State Bank & Trust Co., 31 Nev. 170, 101 Pac. 564. Assistant treasurer cannot be served in lieu of treasurer though latter is nonresident. Winslow v. Staten Island Rapid Transit R. Co., 51 Hun (N. Y.) 298, 4 N. Y. Supp. 169, aff'g 15 N. Y. Civ. Proc. 202, 2 N. Y. Supp. €82. 53 Assistant secretary named in bylaws as a corporate officer is competent to be served for a domestic corporation whose actual chief secretary he was for Kansas, the titular secretary being a nonresident. Colorado Debenture Corporation v. Lombard Inv. Co., 66 Kan. 251, 97 Am. St. Rep. 373, 71 Pac. 584. 54 Assistant secretary, treasurer or cashier as managing agent, see § 2994, supra. 55 Service on the superintendent of insurance is on him as an official and not as an individual; hence his clerk property deputized may receive and admit service effectually. South Pub. Co. v. Fire Ass'n of Philadelphia, 67 Hun (N. Y.) 41, 21 N. Y. Supp. 675, aff'd 137 N. Y. 610, 33 N. E. 744. 56 See the cases hereinafter cited. 57 A manufacturing or mercantile corporation (Pub. Acts 1885, Act No. 232) may be served through any agent, and not only through the "agent in charge of any business office," etc. (Pub. Acts 1903, Act No. 232, § 30, and Pub. Acts 1887, Act No. 242, § 3, held harmonious and cumulative). Moinet v. Burnham, Stoepel & Co., 143 Mich. "any agent" and "any corporation," it betokens the widest application, and extends to foreign as well as domestic corporations and to agents other than the designated statutory agent or the other agents mentioned in other statutes on the subject,58 but when the kind of corporation which may be served through an agent is specified, no other kind of corporation can be thus served.59 Usually the statutes permit service on an ordinary agent only when higher officers or agents designated by the statutes are not found or are absent, though some make no preference.60 The federal courts, in applying and following such a statute "as near as may be" treat the federal district as the "county" in which service must be had on superior officers or agents by preference to inferior ordinary agents.61 Under a stat 489, 106 N. W. 1126, 13 Det. L. N. 38, explaining Goodrich V. HackleyPhelps-Bonnell Co., 141 Mich. 343, 104 N. W. 669; Toledo Ice Co. v. Munger, 124 Mich. 4, 82 N. W. 663. Service on a railroad company may be upon any agent (3 How. St. § 8137) and not only on station agents and ticket agents (3 How. St. § 8147). The first-named statute did not restrict or repeal, but enlarged the other. Turner v. St. Clair Tunnel Co., 102 Mich. 574, 61 N. W. 72. 58 Any agent" of a foreign corporation found in the county may be served. Venner V. Denver Union Water Co., 40 Colo. 212, 122 Am. St. Rep. 1036, 90 Pac. 623, overruling in part 15 Colo. App. 495, 63 Pac. 1061. The provision that "any corporation" may be served by serving any officer or agent of the corporation" applies to foreign as well as domestic corporations. Service on the local agent of a foreign insurance company is good. City Fire Ins. Co. v. Carrugi, 41 Ga. 660. Under the statute "any agent" and not only the one charged with legal business may be served if the president be nonresident in the county. Chicago & R. I. R. Co. v. Fell, 22 Ill. 333. Agent representing foreign corporation or association in the transaction in suit may be served though not the chief or general agent (Pamph. L. 1896, p. 305 construed). Saunders v. Adams Exp. Co., 71 N. J. L. 270, 57 Atl. 899; order affirmed 71 N. J. L. 520, 58 Atl. 1101. The statute (R. S. § 2637, subd. 9) authorizing a foreign insurance company to be served on its appointed agent or any agent of such corporation within the definition of section 1977 in the state," enables a soliciting agent to be served for an unlicensed company which can have no appointed statutory agent. State V. United States Mut. Acc. Ass'n, 67 Wis. 624. 31 N. W. 229. 59 An express company is not a railroad or telegraph company which may be served through an agent. Southern Exp. Co. v. Craft, 43 Miss. 508. 60 See § 2993, supra, and as to foreign corporations, see generally chapter on Foreign Corporations, infra. 61 By conformity an agent cannot be served in Oregon if the superior officers were not residents in the district ["county"] where the cause arose and hence could not be served there (Oregon Code Civ. Proc. § 54): and a cause not arising in the district cannot be sued there as a consequence of this. Lung Chung v. Northern Pac. Ry. Co., 19 Fed. 254. In applying the law of Virginia by [$ 3000 ute of Utah a person having property in charge may be served, if no agent can be served.62 The distinction between agents and mere employees or contractors must be observed, and "agent" has been held to include officers of the corporation,63 traveling salesmen and solicitors, 64 solicitors or others paid by commissions but also representing the corporation; 65 and not to include a member of an advisory committee of the corporation,66 or a mere collector of money due to it.67 A member of a membership corporation may serve it in such a way that he is also an agent of it.68 An agency must in which service is restricted to the county in which suit is brought (Virginia Code, § 3225), the federal court treats the whole district as a county; hence an agent can be sued only when the superior officers are not servable within the district. Miller's Adm'r v. Norfolk & W. R. Co., 41 Fed. 431. 62 An attorney at law "who has any of its property in charge" (Laws Utah, § 3208, subd. 5) is competent to be served if no agent is found. Saunders v. Sioux City Nursery, 6 Utah 431, 24 Pac. 532. 63 Vice president is an "agent" on whom service may be made if the president be not found (Rev. St. 1874, c. 110, $5). Cook v. Imperial Bldg. Co., 152 Ill. 638, 38 N. E. 914, rev'g 46 Ill. App. 279. Vice president is "any agent" of the corporation. Norfolk & W. R. Co. v. Cottrell, 83 Va. 512, 3 S. E. 123. 64 A freight soliciting agent for a railroad's "despatch" line of cars may be served under the statute enumerating certain agents "'or other' agents. Bell Jones Co. v. Erie R. Co., 168 Iowa 96, 150 N. W. 7. Traveling salesman is an "agent." Moinet v. Burnham, Stoepel & Co., 143 Mich. 489, 106 N. W. 1126, 13 Det. L. N. 38. But it has been held that a traveling solicitor for insurance is not an agent vho may be served wherever he is found. Parke v. Commonwealth Ins. Co., 44 Pa. St. 422. Traveling solicitor of foreign railroad cannot be served. Wilson V. Northern Pac. R. Co., 9 Ohio Dec. 634, 16 Cinc. L. Bul. 6. 65 Solicitor of consignments to a factor was an agent though paid by commissions, where he furnished means of identifying shipments and reported details to principal. Crowley, Cook & Co. v. Sumner, 97 Ill. App. 301. Compare Temby v. William Brunt Pottery Co., 127 Ill. App. 441, aff'd 229 Ill. 540, 82 N. E. 336, which holds that a salesman on commissions held not an agent. 66 A member of an "advisory committee' of a foreign corporation is not prima facie its agent. Fahrig v. Milwaukee & C. Breweries, 113 Ill. App. 525. 67 A bank through which an insurance company only collected premiums and delivered receipts on insurance negotiated by other agents is not an agent of the insurance company for service. Bankers' Life Ins. Co. of Lincoln v. Robbins, 53 Neb. 44, 73 N. W. 269. 68 Solicitation of membership by another member of a fraternal accident insurance company according to custom constitutes doing business and the member is an agent in the absence of any designated agent (Comp. St. 1909, c. 16, § 8). Tomson v. Iowa State Traveling Men's Ass'n, 88 Neb. 399, 129 N. W. 529. fact exist or be indisputable 69 wherein the agent may be regarded as representative of the corporation in respect to the proposed litigation,70 or regularly employed by it,71 or such that it may reasonably be supposed that notice will come through him to the corporation.72 It is not essential that the person be always an agent in his relation to the corporation, provided he was such in the transaction leading up to the action.73 § 3001. Stockholders and members. The distinction between the corporation and its stockholders must again be mentioned in stating that service on the stockholder is not a service on the corporation,74 even though the corporation is inactive and without officers 69 Evidence held to show no agency. Bankers' Life Ins. Co. of Lincoln v. Robbins, 53 Neb. 44, 73 N. W. 269. Evidence held sufficient to show agency. Pacific Mut. Life Ins. Co. of California v. Williams, 79 Tex. 633, 15 S. W. 478; Choctaw, O. & G. Ry. Co. v. Locke (Tex. Civ. App.), 92 S. W. 258. After its counsel has represented that one is agent and he has been served, the corporation cannot dispute it. Taylor Provision Co. v. Adams Exp. Co., 71 N. J. L. 523, 59 Atl. 10, rev'd on other grounds 72 N. J. L. 220, 65 Atl. 508. 70 Saunders v. Adams Exp. Co., 71 N. J. L. 520, 58 Atl. 1101; Mulhearn v. Press Pub. Co., 53 N. J. L. 150, 20 Atl. 760; Norton v. Berlin Iron Bridge Co., 51 N. J. L. 442, 17 Atl. 1079. See also § 2991, supra. 71 An agent must have been one actually appointed by and representing the corporation in some line of employment authorized by its charter. Agency by implication of law is not enough, and a ticket agent of a connecting line, who sold only connecting line tickets honored on defendant's road, was not an agent. Barnard v. Springfield & N. E. Traction Co., 274 Ill. 148, L. R. A. 1916 F 451, 113 N. E. 89, aff'g 194 Ill. App. 218. Evidence held to show that person served was a regular agent of defendant. Gilchrist Transp. Co. v. Northern Grain Co., 204 Ill. 510, 68 N. E. 558. 72 In a suit under the Act of 1853 service on a conductor is good, being authorized by the statute. He is such an agent as may be expected reasonably to notify corporate officers of the suit. New Albany & S. R. Co. v. Tilton, 12 Ind. 3, 74 Am. Dec. 195; New Albany & S. R. Co. v. Grooms, 9 Ind. 243. Manager who was agent is competent. Lyon v. Crew Levick Co., 63 Ill. App. 329. Assistant manager is agent. Tennent-Stribbling Shoe Co. v. Hargardine-McKittrick Dry-Goods Co., 58 Ill. App. 368. 73 The agent, through whom the particular transaction was done out of which grew the action, is an "agent" of a foreign corporation for service whatever might be his usual custom of dealing as bearing on the fact of agency. Berkeley v. Culley, 42 App. Cas. (D. C.) 140. 74 As to this distinction, see chapter 1, supra. See also Lillard v. Porter, 2 Head (Tenn.) 177; Bache v. Nashville Horticultural Society, 10 Lea (Tenn.) 436. Service upon "one of the proprietors of the corporation is bad. O'Brien v. Shaw's Flat & Tuolumne in service of it, or is dissolved.75 In such a case the last incumbent officers should be served.76 Under the common law and some statutes a dissolution leaves the stockholders as the reversioners or successors of the corporation, who may sue or be sued for such rights as remain and consequently who should be served if they are defendants. In such a suit, however, they represent themselves, and perhaps the creditors, rather than the corporation.77 If the members or stockholders in addition to being such sustain towards the corporation the relation of officers or agents, they may be served as such, but their membership is an immaterial factor in any such capacity for service.78 § 3002.- Vacant offices, resignations, removals and expiration of office or authority. It has already been stated that a de facto or acting officer is competent to represent the corporation,79 and a corollary to this is that no vacancy de jure but only a vacancy in fact in the incumbency of an office prevents service through it according to the statutory method. Since the person served must have borne a representative relation to the corporation or a duty that presupposes notice to the corporation through service on him,80 service upon a corporate officer who has resigned or ceased to be such prior to Canal Co., 10 Cal. 343; Rand v. Proprietors of Upper Locks & Canals on Connecticut River, 3 Day (Conn.) 441. 75 Even if corporation was dissolved such service will not bind other stockholders. De Wolf v. Mallett's Adm'r, 33 Ky. (3 Dana) 214. Principal stockholders cannot be served even if the corporation is inactive and has elected no officers. The last elected ones should be served. Bache v. Nashville Horticultural Society, 10 Lea (Tenn.) 436. As against other stockholders, service on a stockholder made after the corporation has ceased to do business is inoperative, though he was a director while the corporation was going. Stanton v. Gilpin, 38 Wash. 191, 80 Pac. 290. 76 See $3002, infra. 77 See § 2955, supra, also chapter on Forfeiture, Dissolution and Winding Up, infra. 78 See § 2991 et seq., supra, and especially 3000, supra. 79 See § 2991, supra, and also the following: De facto officers, Berrian v. Methodist Society, 13 N. Y. Super. Ct. 682, 4 Abb. Pr. 424. A subsequent collateral decision that he was not de jure an officer is immaterial. Stillman v. Associated Lace Makers' Co., 14 N. Y. Misc. 503, 35 N. Y. Supp. 1071. Acting cashier or treasurer. Russell v. Pittsburgh Life Insurance & Trust Co., 62 N. Y. Misc. 403, 115 N. Y. Supp. 950. One who tacitly acts as director without a formal acceptance of election is competent. Danville & W. R. Co. v. Brown, 90 Va. 340, 18 S. E. 278. 80 See § 2991, supra. |