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allowed the motion and overruled the demurrer, but, under the statute applicable to the subject, granted an appeal to this court.

The defendant company is a foreign corporation that has not complied with our statutes authorizing such corporations to do business in the state, but its president and secretary and treasurer and several of its directors, all mentioned in the bill, reside in Tipton county, of this state. It has no office or place of business in Sullivan county, but has property there, consisting of about $10,000 on deposit in the First National Bank of Kingsport in that county, which bank is made a defendant.

The complainant sues on a contract for personal services which will presently be more particularly mentioned.

the First National Bank of Kingsport, on the ground of the defendant's nonresidence. At this point it is necessary that we set out the motion to dismiss, which was made in the chancery court. That motion reads:

"Come all the defendants, and appearing specially for the purpose of denying the jurisdieNational Bank, and moved the court to dismiss tion of the court in this cause, except First the bill in this cause as to them, because it appears from the bill and record in the cause that this court has not jurisdiction of the persons of these defendants, because it is alleged in the bill that said company is a foreign corporation with officers and agents in Tipton county, Tenn., upon whom process can be served, and that the other defendants are residents of Tipton county, Tenn., and this suit must be brought in the county where said officers and agents of said De Camp Glass Casket Company reside, or are found, and in the county where said other de

[1] The predicate of the motion is that, where there is an office or agency in any county of the state, the foreign corporation to which it belongs must be sued there, and cannot be proceeded against by attachment of its property in lieu of personal service in any other county where its property may be

found.

The business of the corporation, as defendants reside or are found." scribed in the bill, was the making of glass burial caskets and also other articles of glass. It contemplated building a factory for these purposes at Kingsport and had obtained an option on ten acres of silicate lands. Its purpose was to construct a plant that would cost about $75,000. It employed the complainant as its general superintendent, as he alleges, for the period of two years at the price of $5,000 a year, payable in installments as he should desire, and at the end of each year he was to have a certain proportion of the stock. The bill alleges, in addition to the foregoing matters, that the defendant company was a "foreign investment company," and that it had been engaged in the sale of its stock in Sullivan county, "and perhaps other counties in this state." After alleging that the defendant company had not complied with our laws for the domestication of foreign corporations, the bill

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Among other requirements of the statute referred to, such corporations as it applies to were required to file with the Secretary of State an authorization to accept service of process when suit should be brought in any county of the state. The defendant company filed such authorization, and on process being sent to him, directed to the sheria of Sullivan county, where the bill was filed, the Secretary of State acknowledged service in the name of the defendant company. This is the first ground on which the complainant insists that the court acquired jurisdiction of the defendant company. The chancellor heid that the act of 1913 referred to did not apply to corporations of the class to which the defendant belongs. The first question suggested is whether this decision of the chancellor was correct. This question we pretermit as unnecessary to a decision of the cause.

The complainant's chief claim to effective jurisdiction over the defendant is based on his attachment of its funds in the hands of

It is not a sound proposition that because suit may be brought and personal service had on an agent of a nonresident corporation, in one or more counties of this state, where it has an office or agency, on causes of action growing out of or connected with the business of such corporation, an action may not be commenced against it, on those or othin another county where it has no such office er causes of action, by original attachment or agency, but in which it has property located. The reverse is true. To hold differently would, in our judgment, be a perversion of our statutes, and would greatly narrow the remedies of our citizens against nonresident corporations. A nonresident corporation might own real or personal property, or both, in many counties of the state, with an office or agency in only one. It would be unreasonable to require a citizen of the state having a demand against such nonresident to go to a distant part of the state, to bring his suit, when there is property in his own county out of which satisfaction might be had. Indeed, such a requirement would make it necessary for the citizen, before bringing his attachment suit, to make inquiry in every county of the state for the purpose of ascertaining whether his nonresident debtor had an office or agency located in any one of the counties. It does not appear why he should be subjected to that inconvenience and expense. There is nothing in our statutes to justify such an imposition.

In Shannon's Code (Thompson's Edition) § 4515, it is provided that:

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Section 5211 declares:

"Any person having a debt or demand due at the commencement of an action ** * may sue out an attachment at law or in equity, against the property of a debtor or defendant in the following cases: (1) Where the debtor or defendant resides out of the state."

These two sections lay down the general rule for obtaining effective jurisdiction of nonresident defendants; that is, by attachment of their properties in any county of the state where it may be found. We now reach another class of cases, those covered by sections 4539 to 4541, inclusive. This class is one in which a suit may be brought against a corporation, either resident or nonresident (Coke & Coal Co. v. Southern Steel Co., 123 Tenn. 429, 131 S. W. 988, 31 L. R. A. [N. S.] 278), in the county where the company has its chief office, by service of process on certain designated officers or agents in a prescribed order of precedence. Then comes the Acts of 1859-60, c. 89, now embodied in Shannon's Code (Thompson's Edition) § 4542. This established a new class of cases, viz. those in which "a corporation, company, or individual, has an office or agency or resident director, in any county other than that in which the chief officer or principal resides." As to these it is provided:

"The service of process may be made on any agent or clerk employed therein in all actions brought in such county against said company growing out of the business of, or connected with, said companies' or principal's business." The residue of the section contains a limitation on its scope, expressed as follows:

"But this section shall apply only to cases where the suit is brought in such counties in which such agency, resident director, or office is located."

600, 603, et seq. A gloss, or interpretative addition has been added by the court by construction, to the effect that in the county where such office or agency exists a suit cannot be brought by original attachment, on the ground of nonresidence, thereby to obtain jurisdiction of the person of the defendant in lieu of personal service of process, but that the action must be in personam, process must be served on the officer or agent mentioned or referred to in these statutes. Green v. Snyder, 114 Tenn. 101, 84 S. W. 808. This case is referred to by counsel for defendant as authority for the broader doctrine that, where an office or agency exists anywhere in the state, the plaintiff or complainant must resort to that county, and there bring his suit, and he is precluded from instituting an original attachment proceeding, based on the ground of nonresidence, in some other county where he has found property of the nonresident defendant. The language of the opinion is broad, we concede; but it must be construed in connection with the facts which the court had before its mind. These facts were that the nonresident, at the time the cause of action arose and continuously thereafter, maintained an office and agency in the county in which the attachment suit was subsequently brought. It was on these facts the court held that the plaintiff should have obtained personal service on the resident agent, and that as he could have obtained such service in that county he could not there maintain an attachment proceeding for nonresidence in lieu of such personal service. We are referred to Turcott v. Railroad, 101 Tenn. 102, 45 S. W. 1067, 40 L. R. A. 768, 70 Am. St. Rep. 661, as an opposing authority. The proposition maintained in that case was, simply, that where a railroad corporation, chartered in a foreign state, had carried on its business in Tennessee for a series of years, and kept an office or agency in this state during all that time, it could have been sued here, and jurisdiction obtained by service on its agent, notwithstanding the fact that it had not filed its charter here as required by law, and that one who had a cause of action against it and permitted the period of limitation to elapse before suing could not avoid the bar on the ground that the defendant was in the state in violation of law, and technically a nonresident from the date of its entry. Manifestly this case has no

That is to say, it shall not forbid cases covered by the preceding sections (4539-4541), nor original attachment suits brought in other counties where there is no office or agency, and where property of a nonresident defendant is found. Under the authority conferred by these four sections (4539-4542), any one who has a lawful demand against a corporation, resident or nonresident, growing out of or connected with the business of such corporation, may bring his suit in the eounty where the office or agency is maintained, and secure jurisdiction of it by personal service of process on the designated officer or agent. The right is not confined to matters growing out of a particular office or agency; it is broad enough to embrace any right of action growing out of the business. | bearing. It should be remarked that the Section 4516 (section 2811 of Code 1858) ap parently confines the right to causes of action growing out of the particular office or agency, but this has been construed in connection with the amending Acts of 1859-60, To present as comprehensive a view as we supra, so that the broad language of the lat- can, in the limited space at our disposal, of ter ("growing out of the business of, or con- the phase of our attachment laws which we nected with, said company or principal's have just discussed, it will not be amiss to business") expresses the commanding rule. refer again to the case of Coke & Coal Co.

action which was held barred was brought in Shelby county where the railroad company had for years maintained its aforesaid agency.

Sup.

Ct. 245, 57 L. Ed. 486, Ann. Cas. 1915B, 77.

[2, 3] In addition to the main question above considered, and which was the only one presented by defendant's counsel, or

31 L. R. A. (N. S.) 278. The court there had under examination the question whether an original attachment on the ground of nonresidence could be sued out, and the defendant's property seized, in lieu of personal service of process, where it appeared that passed upon in the court below, in respect the defendant, a foreign corporation, had complied with our statutes prescribing the conditions on which such corporations were permitted to do business here, and had established an office and agency in Hamilton county, where the suit was brought, and had there, for a number of years, carried on its business. It was held that by such compliance the foreign corporation had, by the express terms of our statutes, become domesticated, and must be proceeded against as a domestic corporation, and was not subject to attachment in the form attempted.

Section 2549 of Shannon's Code (Thompson's Edition) presents the case of a foreign corporation that has complied with our statutes but has no office or agency in this state. It is provided that such corporation may be proceeded against by attachment in the manner laid down in the section.

There is still another statute to which we may advert, Acts of 1887, c. 226. This concerns the case of a foreign corporation not domesticated and which has neither property nor a localized business in this state, but has transacted, in the state, some matter of business out of which a cause of action has arisThis statute is reproduced in Shannon's Code (Thompson's Edition), at sections 45434546, inclusive. This statute provides for a form of substitutionary service which is unnecessary to refer to here more particularly.

en.

It is believed that the foregoing discussion presents a fairly adequate view of the several methods by which foreign corporations may be sued in our state. It is apparent that, as the defendant company was a nonresident corporation owning property located in Sullivan county, a debt due from the defendant bank to it (Dillingham v. Insurance Co., 120 Tenn. 302, 108 S. W. 1148, 16 L. R. A. [N. S.] 220), it was subject to be proceeded against in that county by original

attachment levied on that debt, and it is immaterial that it had officers and directors who resided in Tipton county, this state. It was not necessary that the suit should have been brought in the latter county. Indeed, we do not see how the corporation could have been brought before the court by service upon the resident directors in Tipton county, since it does not appear from the bill that it was at that time doing any business in Tennessee. Toledo Railways & L. Co. v. Hill, 244 U. S. 49, 37 Sup. Ct. 591, 61 L. Ed. 982, 987; International Harvester Co. v. Kentucky, 234 U. S. 579, 585, 34 Sup. Ct. 944, 58 L. Ed. 1479, 1482; St. Louis S. W. R. Co. v. Alexander, 227 U. S. 218, 33

of the attachment and the jurisdiction which
the complainant contended that he had ob-
tained thereby, the point is now made in this
court that there was no proper levy of the
attachment writ because, as defendants aver,
no garnishment notice in writing was left
with the defendant First National Bank of
Kingsport, but there was only a reading of
the attachment writ itself to the president
of the bank. Leaving out of view the fact
that the bank was made a party defendant
to the bill, and appeared in court when the
case was heard, although it did not join in
further fact that an injunction writ was
the motion, as shown by the decree, and the
served on the bank which gave it all needed
notice for its protection, forbidding it to pay
defendant (and thus impounding the money
in a manner fully equivalent to a garnish-
ment [Pennington v. Fourth National Bank,
243 U. S. 269, 273, 37 Sup. Ct. 282, 61 L.
Ed. 713, 715, and note 2, L. R. A. 1917F,
1159]), and the fact that the bill itself in
addition contained the fullest notice, and
having in mind that it does not appear that
a copy of the bill had been served on the
bank at the time the decree was rendered,
and without passing on the question wheth-
er the failure to serve a separate notice on
the bank, customary in garnishment cases at
law, would be a fatal defect (aside from Pen-
nington v. Fourth National Bank, supra), or
whether a copy of the bill, together with a
subpœna to answer, would be equivalent in
chancery to such customary notice at law,
and likewise not deciding whether the state-
ment of the officer in his return on the at-
tachment writ that he had not only served
the writ on the president of the bank, but
had attached the fund in the bank, might be
treated as evidence that notice had been left
with the bank-we say without considering
these matters, or their effect, but merely
record, it is clear that no such objection was
stating them as' matters appearing in the
made to the attachment in the lower court
as is now made in this court. On this ground
we decline to consider it. If the point had
been made in the chancery court, any ir-
regularity could have been at once, and eas-
ily, corrected, or compliance with any miss-
ing technicality readily effected.
dubitably clear, from the very full decree of
the chancellor, that the only point presented
to him, on this head, by the defendants, was
that inasmuch as the bill showed on its face
that there were officers and directors of the
company residing in Tipton county, this
state, the suit could have been brought only
there, where personal service of process could
have been obtained, and that there could be,
under the circumstances stated, no suit

It is in

Waiving a decision of the legal question, we may add that we have no case in our state where it has arisen. We have numer

brought in another county by an original attachment levied on the property of the defendant company in that county, based on the ground of nonresidence. Both sides, inous cases that arose between vendor and venthe chancery court, treated the attachment writ as lawfully levied; the contest was only as to its effect, or the rights conferred by such levy. We shall so treat the controversy here. It would be unfair to the complainant to do otherwise. A different course would have all the effect of an unlawful surprise. Although the general rule is that on appeals in chancery the trial is de novo, this does not cover mere technicalities of procedure, but applies only to the hearing on the merits without regard to the chancellor's decision on the facts of the case, as distinguished from the rule obtaining at law, on appeal, that if there is any evidence to sustain the trial judge in a case tried before him his judgment will be affirmed.

The same observations cover the point now first made here that there was no publication for the defendants. We add that before there was time for publication, after the levy of the writ, the defendants appeared in court and made the motion to dismiss, which we have just considered.

The defendants, other than the companythat is, the officers and directors-were made defendants in their personal capacity for the purpose of obtaining alternative relief against them. Their motion to dismiss is the same as that of the company, and rests on no other ground than that the company was not properly in court. That point having been decided adversely to their contention, the motion must be decided against them, as well as against the company.

[4] The motion having been disallowed, the defendants must now be treated as having made their personal appearance in court by the filing of the demurrer.

[5] The ground of the demurrer is that the bill shows, on its face, that the contract was not reduced to writing as required by the statute of frauds. The contention is that it should have been signed by both parties, that is, by the company, the employer, and by the complainant, the employé; that, not having been so signed, it was void and unenforceable. The contract consists of a letter written by the company to the complainant, offering him employment for two years, as its general superintendent, for a consideration therein mentioned. The letter was written April 4th. Complainant alleges in the bill that he accepted it on April 13th. Several letters written later in the month to the company by the complainant, and one in June of the same year, fully recognize the contract as binding on him. Without affirming or denying the proposition of law to the effect that both must sign a contract of the kind appearing in this case, we are of opinion that complainant's letters, just referred to, sufficiently meet any requirement for his acceptance in writ

dee, under subsection 4 of our statute of frauds on the subject of the sale of lands, and the making of leases for a longer term than one year. Shannon's Code (Thompson's Edition) § 3142, subsec. 4. It has been uniformly held, in these cases, that it is sufficient for the vendor to sign, and that he may enforce the contract against the vendee, Some of the same cases apply to leases. The cases under subsection 4 are so numerous, and so well-known to the profession, that they need not be cited. We have cases arising under subsection 5 of the same statute, concerning agreements or contracts not to be performed within the space of one year from the making thereof. In none of these cases was there any question made, or suggestion, as to the need of the signature of both parties. These cases are: Leinau v. Smart, 11 Humph. (30 Tenn.) 308; Deaton v. Tenn. Coal & R. Co., 12 Heisk. (59 Tenn.) 650; Gregory v. Underhill, 6 Lea (74 Tenn.) 207; Railroad Co. v. Staub, 7 Lea (75 Tenn.) 397; Railroad v. Hayden, 116 Tenn. 672, 94 S. W. 940. The question has been decided both ways, in other jurisdictions. That both need not sign, see Smith v. Neal, 2 C. B. (N. S.) 67; Reuss v. Picksley, 4 Hurlst. & C. 588; Vogel v. Pekoc, 157 Ill. 339, 341, 42 N. E. 386, 30 L. R. A. 391; Raphael v. Hartman, 87 Ill. App. 634; Sellers v. Greer, 172 Ill. 549, 50 N. E. 246, 40 L. R. A. 589; Chase v. City of Lowell, 7 Gray (Mass.) 33; Ives v. Hazard et al., 4 R. I. 14, 67 Am. Dec. 500; Himrod Furnace Co. v. Cleveland & M. R. Co., 22 Ohio St. 451, 459; Kearby v. Hopkins, 14 Tex. Civ. App. 166, 36 S. W. 506; Martin v. Roberts, 57 Tex. 564, 568. Cases to the contrary are Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139, 55 Am. Rep. 708; Co-operative Telegraph Co. v. Katus, 140 Mich. 367, 103 N. W. 814, 112 Am. St. Rep. 414; Adams v. Harrington Hotel Co., 154 Mich. 198, 117 N. W. 551, 19 L. R. A. (N. S.) 919; Houser v. Hobart, 22 Idaho, 735, 127 Pac. 997, 43 L. R. A. (N. S.) 410. See comment on the last case in note appended to it in 43 L. R. A. (N. S.) 410.

We may add that a strong analogy to cases arising under subsection 5 may be found in those of our cases which arose under that clause of subsection 4, which applies to leases for a longer period than one year. We believe it has been the uniform practice, in our state, for lessors only to sign, notwithstanding the fact that leases very often contain numerous affirmative covenants on the part of the lessee. Practically the universal opinion of the members of our bar is that such leases, signed only by the lessor, when delivered to and accepted by the lessee, are good, and enforceable against the latter although not signed by him. We would not hold dif

versally considered in this state that the Geo. H. West, of Chattanooga, for E. Waacceptance of such a lease, either verbally terhouse. Rankin & Frazier, of Chatta

or by conduct, would complete the contract between the lessor and lessee and would make it binding and enforceable on both. It is difficult to perceive why the analogy would not be controlling in the kind of a contract we now have before us; but, as stated, it is unnecessary to authoritatively decide the question.

The result is the decree of the chancellor is affirmed, and the cause remanded for further proceedings.

nooga, for Sterchi Bros. Furniture Co.

WILLIAMS, J. Sterchi Bros. Furniture Company, defendant in error, brought suit against Waterhouse on a note in the sum of $1,287.14. In the declaration it was averred that:

The sum "was due by a promissory note here to the court shown, made by Dayton Furniture Company to plaintiff, of which note defendant was indorser."

The declaration was demurred to, but the question discussed below was not raised by the demurrer. On the demurrer being over

WATERHOUSE v. STERCHI BROS. FUR- ruled, the case was tried before the cir

NITURE CO.

(Supreme Court of Tennessee. Feb. 11, 1918.)
1. BILLS AND NOTES 414 INDORSER BE-
FORE DELIVERY-NOTICE OF PROTEST.
One who indorses a note before delivery is
entitled to notice of protest.
2. PLEADING 310

WRITTEN INSTRU

MENT "PROFERT"-DEMURRER. The mere profert of a note upon which an action is founded does not make it a part of the declaration, when the declaration is tested by demurrer, "profert" being a formula in pleading, whereby the pleader professes to bring into court an instrument to be shown to the court and his adversary.

cuit judge without the intervention of a jury, and he rendered judgment against Waterhouse, who appealed to the Court of Civil Appeals. That court affirmed the judgment. It appears that the defendant moved in arrest of judgment on the ground:

"The declaration avers that defendant is an indorser of the note sued on, of which the plaintiff is payee, but fails to allege that notice of dishonor was ever given defendant as such indorser, or that defendant had waived said notice."

The contention of the Sterchi Bros. Furniture Company is that the note was indorsed by Waterhouse before delivery, and that, if a bill of exceptions had been preserved by PROFERT Waterhouse, as there was not, it would have shown the note with an indorsement on

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Profert.] 3. PLEADING 306- WRITINGS -OYER.

Where declaration contains profert of note sued on, and oyer asked by defendant is granted, the note becomes part of the declaration. 4. PLEADING 306 PROFERT AND OYER EFFECT.

If an element essential to the existence of a cause of action be omitted from the declaration containing profert, and oyer be craved, the defect will be cured if the instrument supplies or corrects the omission.

5. JUDGMENT 263(1)-MOTION IN ARREST GROUNDS.

# **

Where declaration averred that sum "was due by a promissory note here to the court shown, of which note defendant was indorser," and proof showed that the indorsement contained waiver of protest, notice of dishonor and presentation by indorser, indorser's motion in arrest could not be granted in view of Acts 1911, c. 32 (Thomp. Shan. Code, § 4902a1), providing that no judgment shall be set aside for any error in procedure, unless in the opinion of the court, after an examination of the entire record, it shall affirmatively appear that the error affected the result of the trial. 6. APPEAL AND ERROR 934(2) TIONS JUDGMENT.

PRESUMP

Where a bill of exceptions incorporating the proof adduced was not preserved, the Supreme Court must assume that there was sufficient evidence to support the judgment rendered.

Error to Circuit Court, Rhea County; Frank L. Lynch, Judge.

Suit by the Sterchi Brothers Furniture Company against E. Waterhouse. Judgment for plaintiff was affirmed by the Court of Civil Appeals, and defendant brings error. Affirmed.

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Such a note appears in the transcript but not identified as a part of the declaration or of any bill of exceptions.

The main assignment of error in this Court by Waterhouse is that the motion in arrest should have been sustained.

[1] The indorser of a note thus irregularly indorsed before delivery is entitled to notice of protest. Pharr v. Stevens, 124 Tenn. 669, 139 S. W. 730.

In Knott v. Hicks, 2 Humph. (21 Tenn.) 162, where the action was on a promissory note against indorsers, and there was no averment of notice of dishonor having been given to the indorsers, and no averment setting forth a legal excuse for the failure to do so, it was held that the omission in the declaration was subject to a motion in arrest, in that no cause of action whatever was set forth; the omission being one that was not cured by verdict. See, also, Railroad v. Maxwell, 113 Tenn. 464, 82 S. W. 1137, and cases cited.

We are persuaded that, notwithstanding this rule, the indorser cannot succeed on his motion in arrest. A distinction must be taken between that ruling and the pending case if it be true or if it must be assumed to be true that the note contract with its

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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