At Law. Action by the Walton N. Moore Dry Goods Company, Inc., against the Commercial Industrial Company, Limited. On motion to quash service of summons and dismiss.

Motion to quash service of summons and dismiss the action for want of competent service upon defendant, a foreign corporation.

The plaintiff is a New York corporation having a place of business in San Francisco, where it carries on a wholesale dry goods business, and the defendant is a foreign corporation organized under the laws of Russia and doing business at Vladivostok and other points in the state or province of Siberia. The matter in suit grows out of the sale and consignment, some time prior to the bringing of the action, of merchandise by plaintiff in San Francisco to defendant in Vladivostok to be there paid for but the drafts for which were not honored on presentation, and it is alleged “that defendant then and there agreed with plaintiff that plaintiff should retake the said goods and ship the same out of Siberia, and should resell the same and charge the defendant with any loss which might be sustained by plaintiff in said transaction and which said defendant then and there agreed to pay to plaintiff;” that the consignment was thereupon reshipped to San Francisco by plaintiff and there sold, resulting in a loss to plaintiff which defendant has not paid and for which breach the action is brought.

The circumstances under which service in the action was had are these: In April, 1921, one Ivanoff called at the place of business of plaintiff in San Francisco bringing a letter of introduction from the defendant, wherein it was stated that the bearer “is our representative for the U. S. A. and Ganada,” and stated that, among other things, he was directed to “Settle the question - about the goods which were shipped from Vladivostok.” The interview of plaintiff with Ivanoff resulted in no adjustment of the demand, and the latter proceeded to New York, where the defendant maintains an office or place of business. Thereafter, about the 1st of August, 1921, Ivanhoff came to San Francisco to meet one Haieff, one of the principal owners or stockholders in the defendant corporation who was arriving from Vladivostok, and on the 2d of August Ivanoff and Haieff called at the place of business of the plaintiff in an endeavor to settle the matter in dispute between them. No adjustment was accomplished at this meeting, and a second conference was held on August 4th with no better success. On this latter date the plaintiff, having in the meantime had the action filed, procured the marshal to make .service of summons upon both Ivanoff and Haieff, the return reciting as to each that he was served as “managing agent of defendant.”

Thereupon the present motion was made. The affidavit of Ivanoff states that he was not, at the time of service, nor “at any time, or at all, the managing or business agent, cashier or secretary, or an officer or agent of aforesaid defendant or authorized by it to receive or accept service of summons upon it”; that he was in San Francisco on the occasion of the service merely temporarily and for the purpose of meeting Mr. Haieff and his daughter, who were Russians and could not speak the English language, in order to assist them and act as their interpreter in the matter of placing Mr. Haieff’s daughter in a young ladies’ boarding school in California and to accompany Mr. Haieff to New York City. The affidavit of Haieff states that he was, on the occasion of the service upon him, “only temporarily and casually present in the city and county of San Francisco, state of California, and was not, and am not, present therein lor the purpose of transacting business on behalf of defendant or of transacting any business except as hereinafter particularly set forth”; and, after referring to the service of summons upon him, states: “I am not now, nor was I at the time of the aforesaid pretended service of summons upon me, or at all, on or about the 4th day of August, 1921, or at any time, or at all, the managing or business agent, cashier or secretary or an officer or agent of aforesaid defendant or authorized by it to receive or accept service of summons upon it. After my home in Blagoveschensk, Russia, had been seized by the Bolsheviks, I, with my wife and children, escaped from Blagoveschensk to Harbin, China, and there decided to send my son Valentine first, and take my daughter Nadezda later, to the United States for the purpose of placing them in American schools for education, my wife and our remaining children to remain in Russia in accordance with said plan and for the further purpose of improving my health, which has been seriously impaired by reason of my previous experiences with the Bolsheviks in Russia; and for no other purpose, except as hereinafter mentioned, I have made this present visit to the state of California with my said daughter. I have entered my said son as a student at the University of California, and my said daughter at Castillera School at Palo Alto, Santa Clara county; state of California. On or about the 2d day of August, 1921, and again on or about the 4th day of August, 1921, subsequent to all alleged happenings referred to in the complaint on file herein, I called on Walton N. Moore, president of plaintiff corporation herein, at his office in San Francisco, Cal., with Nicholas N. Ivanoff, who interpreted for me in the conversation which I then and there held with the said Walton' N. Moore, since I have no knowledge of the English language, and I endeavored to ascertain from him upon what terms the controversy .existing between plaintiff and defendant could be adjusted in order that I might make a report on the matter.”

The affidavit of Walton N. Moore for the plaintiff states that Ivanoff and Haieff stated that they were authorized to settle the matter in dispute for the defendant; and there is an affidavit by one Garrissere in behalf of plaintiff to the effect that on August 20, 1921, the defendant purchased of a corporation represented by affiant a consignment of goods to be shipped to the Orient, and that in that transaction Ivanoff acted in behalf of and represented himself as the agent of the defendant, and that the goods were paid for by him by cheek drawn on a New York bank.

It does not appear that either of the parties upon whom service was made had any participation in the making of the contract in question or the transaction out of which it grew, or had anything to do therewith other than as above recited; nor does it appear that the defendant at the time of the service had or maintained within this state or-district any office or place of business or carried on therein any general business transactions; that apparently the transaction in question was the only one pending at the time between the parties.