Wilson v. McKinney Mfg. Co.

Wilson v. McKinney Mfg. Co.

Opinion

 [*332]  Before WILBUR and SAWTELLE, Circuit Judges.

WILBUR, Circuit Judge.

Appellant brought an action based upon a patent for a form of lock which he claims is being infringed by the appellee. The action was brought in the United States District Court for the Northern District of California, Southern Division. Upon motion to quash and to dismiss for want of jurisdiction, the court quashed the service of subpoena and dismissed the action. The sole question presented by the record is whether or not the appellee has "a regular and established business" in that district within the meaning of that phrase as used in section 48 of the Judicial Code (March 3, 1897, c. 395, 29 St. 695, March 3, 1911, c. 231, § 48, 36 Stat. 1100, 28 USCA § 109), which reads as follows: ] "In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a [**2]  person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business. If such suit is brought in a district of which the defendant is not an inhabitant, but in which such defendant has a regular and established place of business, service of process, summons, or subpoena upon the defendant may be made by service upon the agent or agents engaged in conducting such business in the district in which suit is brought."

The facts are not in serious dispute. In support of the motion to dismiss, appellee filed an affidavit of its San Francisco agent, J. Van Housen, the general purport of which is that the appellee is engaged in the manufacture of builders' hardware at Pittsburgh, Pa.; that affiant has been the western representative of the company for six years and in charge of an office at 623 Call building, San Francisco, Cal.; that his duties as western representative of the company consist solely in conducting so-called "missionary work" directed toward the introduction of the products of the appellee to dealers, architects, builders, users, and others in authority  [*333]  to specify, and to direct the specifying, of [**3]  the products of the appellee for installation in building construction, and in creating a demand for such products by jobbers and users; that the supplies for the California market are ordered by local jobbers direct from the appellee at Pittsburgh, Pa., and are furnished in pursuance of such orders; that the retail trade is furnished from the stock of the jobbers derived from the appellee, as aforesaid; that occasionally orders are transmitted by the affiant to the Pittsburgh offices for acceptance or rejection; that all orders by retail dealers contacted by the affiant are always transmitted to local jobbers and are filled by them from stock purchased directly from appellee at Pittsburgh. Affiant avers that he does not have, and never has had, any power or authority to consummate a sale of merchandise for appellee, and that no one else within the district has such authority, that all sales made by the appellee have been made at Pittsburgh, shipped f.o.b. and billed directly by the Pittsburgh office of the company to the purchaser, and that all collections therefor have been handled exclusively by the Pittsburgh offices. The San Francisco office has never had and does not now have [**4]  any part in billing, shipping, or collecting of the purchase price for any goods sold by the McKinney Manufacturing Company. The western representative receives a salary and commission on all sales by the company to builders and jobbers located within his territory paid by check mailed from the Pittsburgh offices; traveling expenses, office rent, and incidental expenses are paid in the same manner; the local office has no bank account, no receipts to handle there, and no books of account to keep therein; the San Francisco office has samples for display and demonstration only; no stock or warehouse supply of any of appellee's lock products has ever been maintained within the district for sale or delivery by or through the San Francisco office as a regular and established place of business.

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