BROWNING-DRAKE CORPORATION vs. AMERTRAN SALES COMPANY.

CROSBY, J. This is an action of contract brought in the Superior Court by the plaintiff, a Massachusetts corporation, against the defendant, described in the writ as "a corporation having a usual place of business in Cambridge in said County of Middlesex." The writ is dated July 12, 1928. The material parts of the officer's return of service are as follows: "Middlesex, ss.-, July 17, A.D. 1928. By virtue of this writ, I this day attached a chip as the property of the within-named defendant corporation, Amer Tran Sales Company, and summoned it to appear and answer at court by giving an attested copy, together with a summons, of this writ in hand to Edna Tucker, its Cashier and person in charge of its business. J. Fisk Ford Deputy Sheriff." After the trial of issues raised on a plea in abatement, subject to the defendant's exception, the judge ordered the following to be inserted in the substituted bill of exceptions: "During the progress of the trial at a conference in the Lobby the Court stated that if the officer would present a motion to amend the officer's return,

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he would allow it. On August 21, 1929 the officer filed a motion that the word 'agent' be substituted for the word 'person' in his return. This motion was allowed on October 22, 1930 as of June 25, 1929 against the objection of the defendant who duly excepted thereto."

The defendant appeared specially and filed a plea in abatement which, in effect, denied the jurisdiction of the court, and alleged that it is a corporation organized under the laws of the State of New Jersey and having a usual place of business in Newark in that State; that it was not at the date of the writ, or at any time thereafter, engaged in or soliciting business in the Commonwealth, and did not at any time have in this Commonwealth any agent or officer authorized to transact business in the name of the corporation; that Edna Tucker was not at the time of the said service clerk, cashier, secretary, agent or other officer in charge of its business; that there was no other service of process in this action, and that no attachment of property was made.

At the close of the evidence, all of which so far as material is reported, the defendant filed a written motion for a directed verdict; this motion was denied and the defendant excepted. The judge, subject to the defendant's exception, submitted the following questions to the jury: (1) "Did the defendant corporation at the time of the service of this writ have a usual place of business in the Commonwealth?" (2) "Was it then engaged in or soliciting business in the Commonwealth, whether permanently or temporarily?" (3) "Was Edna Tucker, at the time of the service of this writ upon her, the cashier of the defendant corporation?" (4) "Was Edna Tucker, at the time of such service, the cashier of the defendant corporation, in charge of the business?" (5) "Was Edna Tucker, at the time of such service, the agent of the defendant corporation in charge of its business?" The jury answered each question in the affirmative. The defendant submitted seventeen requests for rulings, all of which except the fifteenth were refused; to such refusal the defendant excepted.

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The judge was authorized in his discretion to allow the amendment to the officer's return of service. G. L. c. 231, §§ 51, 52, 53. Shepherd v. Jackson, 16 Gray 599. United Drug Co. v. Cordley & Hayes, 239 Mass. 334, 338. The fact that the motion was allowed after the questions submitted to the jury had been answered and the jury had been discharged, did not in any event affect the rights of the defendant, as there was evidence, without amendment of the return, which warranted a finding that proper service had been made upon Tucker as cashier of the defendant corporation.

The questions of law presented for decision arising upon the defendant's plea in abatement are before us on a report under G. L. c. 231, § 111, which recites that reference is made to the bill of exceptions filed by the defendant in which the exceptions arising upon the plea in abatement are fully set forth together with all the material evidence.

There was evidence tending to show the following facts: The defendant's main office was in Newark, New Jersey; it was a selling agent for the American Transformer Company. The name of the defendant and the name of the Browning-Drake Speaker Sales Company appeared on the door of an office in Cambridge; the defendant was not the lessee of the office and did not own any of the furniture or office fixtures. The defendant's name was in the telephone directory. A stock of products of the American Transformer Company was kept on the premises to be sold by the defendant in the Cambridge office, and money was received for such products there. Upon the firiding of these facts a further finding was justified that the defendant was a foreign corporation with a usual place of business in this Commonwealth within the meaning of G. L. c. 223, § 38. Attorney General v. Electric Storage Battery Co. 188 Mass. 239. Marconi Wireless Telegraph Co. of America v. Commonwealth, 218 Mass. 558, 567. Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379. Plibrico Jointless Firebrick Co. v. Waltham Bleachery & Dye Works, ante, 281.

There was evidence from which it could have been found

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that one Tucker, above referred to, was at times the only person in charge of the office; that she sold and received payment for goods of the defendant; that no retail business was ever done there; that she made out invoices, shipped material to customers and wrote letters to the American Transformer Company, in Newark; that she was paid by one Pope who was treasurer both of the defendant corporation and of the Browning-Drake Speaker Sales Company. This evidence warranted a finding that Tucker was a cashier and an agent in charge of the defendant's business in Cambridge, and that service on her was in compliance with G. L. c. 223, §§ 37, 38, which provide that service upon a foreign corporation with a usual place of business in this Commonwealth may be made by service upon "the clerk, cashier, secretary, agent or other officer in charge of its business . . . ."

It was within the discretion of the trial judge to submit the five questions to the jury. Graves v. Washington Marine Ins. Co. 12 Allen 391. Boston Dairy Co. v. Mulliken, 175 Mass. 447, 448. Hart v. Brierley, 189 Mass. 598, 604. Walsh v. Adams, 245 Mass. 1, 6. The exception to the submission of the questions to the jury must be overruled.

It remains "to consider the exceptions to the refusal to grant the defendant's requests for rulings. The first five and the thirteenth could not properly have been given: they relate to questions of fact which were rightly submitted to the jury. As it is plain it could have been found upon the evidence that the defendant was properly served with process, the findings were not in violation of the defendant's rights under the Fourteenth Amendment to the Federal Constitution. Accordingly the defendant's exception to the refusal of the judge to give the seventeenth request must be overruled. The sixth, seventh and eighth requests are waived by the defendant. As to the fourteenth request, although it was not given in exact terms, it is plain from a reading of the charge that it was in substance covered. The ninth request that the officer's return on the writ does not purport to state that service was made on any agent of the corporation in charge of its business,

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could not properly have been given for the reasons hereinbefore stated. The tenth request called for a definition of the word "cashier" and cites the definition of that word as given in Webster's International Dictionary. The judge in his instructions fully and accurately explained to the jury what "cashier" meant as used in the statute relating to the service of process on a foreign corporation with a usual place of business in this Commonwealth. The refusal to grant this request fails to show any error. The eleventh, twelfth and sixteenth requests were rightly denied as they dealt with certain specific portions of the evidence. Bourne v. Whitman, 209 Mass. 155, 164. Hunt v. Boston Terminal Co. 212 Mass. 99, 101. Ayers v. Ratshesky, 213 Mass. 589, 593.

During the redirect examination of a witness called by the plaintiff, he testified that he was in the defendant's office after July 17, 1928. He was asked "What did you see there?" The defendant excepted to the admission of this question. The witness replied, "I noticed Miss Tucker and generally the same stock of goods that I saw a few days before." This question and the answer were admissible and warranted an inference of a continuity of relationship between the defendant corporation and Miss Tucker. See Phillips v. Chase, 201 Mass. 444, 448.

On further redirect examination of this witness, he produced an invoice purporting to show a sale of a "resistor" by the defendant to the plaintiff. It was.dated May 7, 1928, and bore the heading "AmerTran Sales Company, 552 Massachusetts Avenue, Cambridge." The invoice was admitted in evidence subject to the defendant's exception. The heading on the invoice was evidence which tended to show that the defendant had a place of business at that address. The exception to its admission is without merit.

The defendant saved two exceptions to certain parts of the judge's charge. They need not be referred to in detail. A careful examination of the entire charge shows no error. These exceptions must be overruled.

There was no error in the submission of the questions

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to the jury, and in view of the answers thereto the plea in abatement is overruled. The defendant's exceptions are overruled, and the case is to stand for further disposition in the Superior Court.

So ordered.