The services rendered by Dichmann, Wright & Pugh to the defendant were under a so-called agency agreement dated June 5, 1925. The agency agreement provided in Clause 1, "Duration of Agency", as follows: "The agency is subject to cancellation by us at any time and without previous notice and/or cancellation by yourselves upon thirty days' written notice."
It is undisputed that the defendant, on April 11, 1940, sent a letter to Dichmann, Wright & Pugh, enclosing a circular letter dated April 10, 1940, addressed to patrons of the defendant, notifying the latter that it was discontinuing "sailings entirely". The letter of April 11, 1940, to Dichmann, Wright & Pugh (Exhibit A in the deposition of September 30, 1940) was intended, it is clear, to advise Dichmann, Wright & Pugh of the discontinuance of operations and sailings by the defendant company.
The deposition disclosed that the last service performed by Dichmann, Wright & Pugh for the defendant was on May 19, 1940, in the handling of the Steamship "Lynghaug" which was on schedule and which had not as yet completed its voyage at the time the letter of April 11, 1940, was sent. Incidentally, that letter was received by the agent on April 12, 1940.
It is unnecessary, by reason of the situation set forth above, to discuss the relationship between the defendant and Dichmann, Wright & Pugh, and as to whether such relationship constituted the latter an agent of the defendant generally, so as to make service valid.
It is only by reason of the contract between the defendant and Dichmann, Wright & Pugh, and the services rendered by the latter to the defendant under the terms of that contract of June 5, 1925, that the plaintiff contends that there was a proper service of the summons and complaint in this matter.
At the time the suit was started on July 5, 1940, and at the time of the service of the alias summons and complaint on August 8, 1940, Dichmann, Wright & Pugh were not performing any service of any nature whatsoever for or in behalf of the defendant, its last services having been rendered on May 19, 1940.
It is well established that where the person served is not the agent of the defendant at the time of the attempted service of process, the attempted service is ineffectual and invalid, and should be set aside. La Varre v. International Paper Co., D.C., 37 F.2d 141, 144. The agency relationship must exist at the time of the alleged service. Sasnett v. Iowa State Traveling Men's Association, 8 Cir., 90 F.2d 514, 515.
In view of the fact that Dichmann, Wright & Pugh were not serving as agents of the defendant at the time of the service of the alias summons and complaint, the motion to vacate the service must be granted, and
It is so ordered.
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