Opinion
14017
March 14, 1935.
Before FEATHERSTONE, J., Greenwood, October, 1934. Appeal dismissed and order affirmed.
Action by T.A. March against the Union Trust Company of Maryland and another. From an order denying defendants' motion to set aside service of summons, named defendant appeals.
The order of Judge Featherstone directed to be reported follows:
The plaintiff's cause of action is to recover the statutory penalty for failure to mark satisfied a real estate mortgage.
The Union Trust Company of Maryland is a Maryland corporation; the other defendant is a South Carolina corporation, against whom no relief is sought.
This motion is by the defendant Union Trust Company of Maryland to set aside the service of summons and complaint upon one C.M. Gaffney, who, it is claimed by plaintiff, is the agent of the Union Trust Company of Maryland.
There are certain undisputed facts: The mortgage is in the form of a deed of trust; it was executed by plaintiff to Union Trust Company of Maryland and the American Bank on November 1, 1926; it is identical in form with that executed by Nicholas Sterghos.
All payments made by this plaintiff were made by check to the Union Trust Company of Maryland, were indorsed and collected by it. The payment under the terms of this mortgage were to be made to the Mortgage Security Corporation of Norfolk, Va., or the Union Trust Company of Maryland, Baltimore, Md.
The mortgage was executed at Greenwood, S.C. and recorded in Greenwood County.
The contention of defendant is that it has never done business in South Carolina; that in this paper executed to it it was only acting as co-trustee with the Mortgage Security Corporation of America to secure loans made to various individuals throughout the United States, in which the Mortgage Security Corporation had an interest.
The defendant denies that C.M. Gaffney, upon whom the service was made, is or was its agent.
There are only two questions involved:
(1) Did the Union Trust Company of Maryland do business in South Carolina?
(2) Is or was C.M. Gaffney its agent in the sense that service upon him is service upon the Union Trust Company?
As usual in such motions, the facts must be gleaned largely from affidavits, always a very unsatisfactory method of obtaining the facts.
It is conceded by the attorneys of record that the Union Trust Company of Maryland never became domesticated and authorized to do business in South Carolina; that it did in conjunction with the American Bank take the mortgage of plaintiff and that of Nicholas Sterghos is not denied; that it did receive, indorse, and collect from the plaintiff, March, on this mortgage debt cannot be denied.
That insurance was taken over the mortgaged premises in favor of the defendant, in South Carolina, for their protection, is a fact. W.E. Peeler, manager of an insurance agency in Greenwood, swears that his agency wrote the insurance upon the Sterghos property, with loss payable to the Union Trust Company of Maryland; that on August 12, 1932, the insurance was canceled at the request of Mr. C.M. Gaffney; that the request was conveyed through a letter, which letter is attached to his affidavit.
Mr. M.G. McDonald, a member of the Greenwood bar, makes affidavit that he represented Nicholas Sterghos in connection with his mortgage to the Union Trust Company of Maryland; that in reference thereto he had correspondence with C.M. Gaffney, of Greenville, S.C. and on February 24, 1934, he procured a written statement from the said C.M. Gaffney, purporting to give an itemized statement of balance due upon said mortgage; that about March 19, 1934, he went to Greenville and had a long conference with the said C.M. Gaffney with reference to said mortgage; that from his conversation with the said C.M. Gaffney at that time, he understood that the said C.M. Gaffney was agent of the Union Trust Company of Maryland; that Mr. Gaffney not only discussed the circumstances surrounding the making of this mortgage, but also procured his file upon it and went over with affiant the details of the amount then due under this mortgage.
Nicholas Sterghos makes affidavit, setting out the fact of the giving of this mortgage to the Union Trust Company; that, when this loan was closed, the said Mr. Gaffney came from Greenville and brought the check of the Union Trust Company; that later Mr. Gaffney came to see him and talked with him about the amount that was due upon this loan; that payments were extended by Mr. Gaffney; that Mr. Gaffney requested cancellation of the insurance; that, after the loan had been running for about three years, the Union Trust Company of Maryland wrote him a letter directing him to make all payments to Mr. Gaffney; that deponent cannot now locate this letter; that in October, 1933, Mr. Gaffney came to Greenwood and told this deponent that the Union Trust Company of Maryland was in financial trouble and that the National Realty Management Company, Inc., was taking over management and collection of all loans made by the Union Trust Company of Maryland, and requested that thereafter all checks be made payable to the said realty company, which was done, and he attached check and letter in verification of this fact stated by him.
The weight of the testimony of Sterghos is assailed on the ground that the written application for his loan was made to the Mortgage Security Corporation of America and not to the Union Trust Company of Maryland, as stated by Mr. Sterghos in his affidavit, the application does so show; but the fact remains that, when the mortgage was executed, it was given to the Union Trust Company of Maryland and the American Bank.
It is worthy of note that Mr. Gaffney in his affidavit contents himself with general statements, to the effect that he is not now, nor never was, the agent of the Union Trust Company of Maryland; that the Sterghos application was not made to the Union Trust Company of Maryland, but to a different company.
It is vain to search in his affidavit for anything that even tends to contradict, in the main, the statements of Mr. Peeler, Mr. McDonald, or Nicholas Sterghos, except as to his application.
I am aware that agency cannot be established solely by the statements of the agent, but such statements are competent to show agency in conjunction with other facts and circumstances.
After considering all the facts and circumstances, it is hard for the Court to believe that the Union Trust Company of Maryland was not doing business in South Carolina; and it is equally hard for the Court to satisfy itself that C.M. Gaffney is or was not the agent of the Union Trust Company. On the contrary, the Court is satisfied from the showing made that, even though the Union Trust Company of Maryland was never domesticated in South Carolina, it actually did and was doing business in this State; and it is evident also that C.M. Gaffney was and is the agent of the Union Trust Company.
There are numerous cases upon this subject, but each case must depend upon its own facts. It may not be amiss, however, to quote from McSwain v. Adams Grain Provision Co., found in 93 S.C. 103, 107, 76 S.E., 117, Ann. Cas., 1914-D, 981, but in Jenkins v. Bridge Co., 73 S.C. 526, 532, 53 S.E., 991, 993 the Court held that even the absence of power to contract represent the company to receive service, saying:
"The test of agency is not the power to make a contract binding the employer. Such power shows agency, but agency may also be shown by the fact that a person represents the master in some one or more of his relations to others even though he may not have power to contract. The statute makes service on `any agent' of a foreign corporation sufficient. The statute, therefore, does not require that the agent shall be general, but is complied with by service upon an agent having limited authority to represent his principal."
As before stated, the plaintiff's action is to require satisfaction of mortgage held by the Union Trust Company of Maryland, as trustee and to recover the statutory damages for failure to satisfy of record.
Even though the Union Trust Company of Maryland held this mortgage as trustee, that would not relieve it from the duty to satisfy; but the Court is not called upon to decide anything except as to the validity of the service.
It is therefore ordered that the motion to set aside the service be, and it is hereby, refused.
It is further ordered that the defendant Union Trust Company of Maryland be allowed ten days in which to answer or plead if it be so advised, from the date of receipt of a copy of this order.
Messrs. Haynsworth Haynsworth, for appellant, cite: Jurisdiction of foreign corporation: 173 S.C. 527; 176 S.E., 711; 37 F., 242; 56 N.E., 369; 181 N.E., 444. Agency: 104 F., 684; 21 R.C.L., 1351.
Messrs. S.H. McGhee and Norman A. Harrison, for respondent, cite: As to doing business: 123 S.C. 522; 21 R.C.L., 1351; 48 S.C. 73; 172 U.S. 602; 124 S.C. 346; 61 S.C. 361; 73 S.C. 528; 93 S.C. 103.
March 14, 1935.
The opinion of the Court was delivered by
This appeal is from an order of Judge Featherstone which denied a motion to set aside the service of the summons and complaint made on the ground that the person served was not when served, and is not now, the agent of the appellant, and the appellant was not then, and is not now and never has been, doing business in this State.
It is the settled rule of this Court that, if the Circuit Court finds, as matter of fact, that the foreign corporation is doing business in this State, and that the person served is the agent of the corporation sued, such finding is binding on this Court, unless there is no evidence to support such finding. The question then becomes one of law. Lipe v. C., C. O.R. Co., 123 S.C. 515, 522, 116 S.E., 101, 30 A.L.R., 248; Pollock v. Carolina Interstate B. L. Ass'n, 48 S.C. 65, 73, 25 S.E., 977, 59 Am. St. Rep., 695; Bass v. Amer. Products Exp. Imp. Corp., 124 S.C. 346, 117 S.E., 594, 30 A.L.R., 168; Abbeville Elec. L. P. Co. v. Western Elec. Supply Co., 61 S.C. 361, 39 S.E., 559, 55 L.R.A., 146, 85 Am. St. Rep., 890; Jenkins v. Penn Bridge Co., 73 S.C. 526, 528, 53 S.E., 991; McSwain v. Adams Grain Provision Co., 93 S.C. 103, 76 S.E., 117, Ann. Cas., 1914-D, 981.
In the present case the evidence is contradictory. We are unable to say there was no evidence to sustain the finding of the Circuit Judge.
The appellant relies on the opinion of this Court in the case of Dyar v. Georgia Power Company, 173 S.C. 527, 176 S.E., 711.
In that case this Court recognized the rule that, in order to obtain jurisdiction of a foreign corporation in this State, two things are essential: That the foreign corporation is doing business in this State when action is brought; that the person served with the process is then the agent of the corporation; but the majority of the Court found that, in that case, there is no evidence to show that these conditions were complied with. Hence, as a matter of law, this Court could decide the issue. This Court cannot say here that there is no evidence to sustain the order of Judge Featherstone.
The appeal is dismissed, and the order appealed from is affirmed. Let it be reported.
MESSRS. JUSTICES STABLER and CARTER and MESSRS. ACTING ASSOCIATE JUSTICES MANN and PHILIP H. STOLL concur.