From the opinion of the Court of Civil Appeals we make the following extract:
"This suit was begun in the District Court of Tarrant County on the 10th day of June, A.D. 1902, by appellee B.E. Anderson, seeking to recover of appellant, the Western Cottage Piano and Organ Company, the sum of $465.65, alleged to have been advanced or paid by appellee in the discharge of an indebtedness in that sum of one John F. Mann and associates to appellant, on the faith of certain alleged representations of the agent of appellant as to the solvency of said Mann and associates, and on the faith of the sufficiency of a certain chattel mortgage held by appellant against said Mann as security for said indebtedness. Appellee alleged that said alleged representations were knowingly, maliciously and fraudulently false, tendered back said chattel mortgage, and asked for the recovery back of said sum, and also for the recovery of exemplary damages in the further sum of $1000."
The citation was issued to the sheriff or any constable of Tarrant County and commanded him to summon the Western Cottage Piano and Organ Company, a corporation, contained all the necessary elements of a citation, and was returned by the sheriff of Tarrant County with this indorsement: "Came to hand this the 19th day of June, 1902, and executed the 20th day of June A.D. 1902, by delivering to John Alcott, State agent for the Western Cottage Piano and Organ Company, the within named defendant, in person, a true copy of this writ," which was signed by the sheriff of Tarrant County. The writ was returnable to the second Monday in September, 1902, which was the 8th day of that month, and on the 9th day of that month the defendant filed a motion to quash the return of the sheriff because it was not served upon any agent of the defendant authorized by the statute. Accompanying the motion was an affidavit from John Alcott, on whom the citation was served, stating in effect that he was at the time a resident citizen of Dallas County, Texas; that he was not the local agent of the defendant in Tarrant County, nor in any county in the State; that the only relation or connection existing at the time, or at any time prior or subsequent thereto, between him and defendant was that he was a salaried traveling employe of the defendant throughout the territory of the States of Louisiana, Arkansas and Texas, whose only duties and powers were to check up and receive reports from the various dealers or merchants who were engaged in handling and selling musical instruments within said territory obtained from said defendant, receive payment for the same and to receipt therefor on behalf of the defendant, and to receive and forward to defendant offers or contracts from persons offering *Page 435 to handle defendant's goods in said territory. The District Court overruled the motion to quash, after which the defendant filed its answer and trial was had which resulted in a verdict and judgment for the plaintiff for $465.65 actual damages and $500 exemplary damages.
The Court of Civil Appeals failed to make a full statement of the facts in this case, and we shall assume in passing upon the question that the evidence was sufficient to justify the verdict of the jury for exemplary damages if the proofs shows that McCarley was such an officer or agent of the corporation as that it would be responsible in exemplary damages for his fraudulent, malicious or other wrongful acts. The scope of McCarley's duties and authority are stated by himself as follows:
Mr. McCarley testified that at the time of the transaction in question he was the company's State agent. He said: "My duties were to make contracts for the assignment or sale of their goods, either cash or on consignment, do a general business, collecting and closing up contracts or close up agencies or anything that came in the line of doing business for them. I had charge of the agents in Texas; looked after the agents and the property in Texas; had full control of the agencies and business in Texas; whenever there was anything to do in the company's business I did it and had authority to do it and I acted for the company in all matters pertaining to its business in Texas. I suppose that it is a fact that everything I did with reference to all this transaction, with reference to those instruments and Mann and Mrs. Anderson, was done in my capacity as agent for the company."
Article 1223 of the Revised Statutes prescribes the method of serving citations on foreign corporations thus: "In any suit against a foreign, private or public corporation, joint stock company or association or acting corporation or association, citation or other process may be served on the president, vice-president, secretary or treasurer, or general manager, or upon any local agent within this State, of such corporation, joint stock company or association, or acting corporation or association." The person on whom the citation was served in this case was not one of the officers named in the article, and if comprehended in its terms it must be in the phrase, "any local agent within this State." "Local agent," as used in the statute, means an agent at a given place or within a definite district. An "agent for the State," is not "a local agent within this State:" therefore the service upon Alcott, State agent for the corporation, was not authorized by law. The trial court erred in not quashing the return of the sheriff.
The filing of the motion to quash operated as an appearance to the next term in case the motion had been sustained. Rev. Stats., art. 1242. It is contended that after the motion was overruled the defendant should have asked for a postponement until the next term, but that was unnecessary, because when the motion to quash was overruled the defendant was required to answer or suffer judgment by default, and the overruling of his motion to quash would have been no ground for a continuance. *Page 436
Plaintiff in error contends that its liability for the fraud committed by McCarley should be limited to actual damages suffered by Mrs. Anderson. It was a foreign corporation doing business in Texas under a permit, and none of its general officers appear to have resided in this State, hence the business of the corporation in Texas could be conducted only by agents, as distinguished from officers. Under these circumstances it seems reasonable that the agent placed in charge of the business of such corporation should be clothed with ample powers, and we are of opinion the facts show that the governing body of the corporation constituted McCarley its representative and should be treated as being present as far as a corporation can be in all of McCarley's acts done in performing his duties. The evidence shows that McCarley had authority and discretion to do whatever was necessary to be done in transacting the business of the plaintiff in error in this State, without referring the matter to any other person for direction or advice, and that he did so act in all of its business. We think this places the corporation upon the same footing as "if it had been present in person of its manager speaking and acting for itself and on its own responsibility." Gulf C. S.F. Ry. Co. v. Reed, 80 Tex. 365. The quotation expresses very clearly what we believe to be a correct proposition of law as applied to the facts of this case. We do not undertake to lay down a general rule upon this subject, but limit our decision to the facts of this case.
Because the trial court erred in refusing to quash the sheriff's return of service, the judgments of the District Court and of the Court of Civil Appeals are reversed and this cause remanded.
Reversed and remanded.