40 C » ~ *·FEDERAL Rnroirrnn. _ E
licenser may, by written notice to it, or by publication in some news-
paper in -—-, revoke said authority to collect and revoke and,
cancel all the right and interest of every kind thereunder of the sec-
ond party; and may in its name, or the name of the second party,
if it shall deem such course more convenient,»collect all rentals for
telephones and lines furnished thereunder, or in accordance there-
with, whether then due or thereafter to become due, and take pos-
session and remove alltelephones furnished thereunder, subject to_
' such rights as such customers may lawfully have under licenses to be
granted by it, in accordance with the terms thereof. For all rentals
and royalties so collected by the licenser, and which accrued before the
licensor gave notice as aforesaid, it shall account to the second party,
first ded-ucting all that may be due from said second party to it, and
expenses incident thereto."
The contingent right thus reserved to tl1e licenser for its protec-
tion, in the event of default on the part of the licensee corporation in
making stipulated payments, and which, as averred in the plea, it has
never, in fact, exercised, or had any occasion to assert, cannot be
. construed either as the carrying on of business in Ohio by the Ameri-
can Bell Telephone Company, or as constituting the licensee corpora-
tion one of its "managing agents." While the contract between the
Bell Telephone Company and the local corporations is in force, the lat-
ter receives these private-line rentals and royalties as their own, and
not as agents of the former. But, whatever may be the construction
of this private-line contract, it is distinctly disclosed by the plea that
the parties thereto have not dealt with these rents and royalties, or
transacted the business, on the footing of any agency relation. The
plea clearly sets forth that the business in respect to private-line cus-
tomers has in fact been and is conducted on the theory that the
rentals and royalties arising from such customers belong to the local
companies, as their purchased right, while the.contracts are in force.
The stipulations of the contracts are entirely consistent with the re-
lation of licensor and licensee, even as to these private-line tele-
phones; and the rents and royalties reserved thereon, and the actual
course of dealing between the parties in respect thereto, will not har-
monize with any other relation. An agency relation may in some
cases arise or be established as a legal result from the facts, although
contrary to the avowed intention of the parties; but no such rule can
have any application to cases where it is sought to reach foreign cor-
porations by service on a local agent. Such agent must be one act-
ually appointed by and representing the corporation as a matter of
fact, not one created by construction or implication, contrary to the
intention of the parties. The present contracts leave no room to
doubt that the local or licensee corporation acquired the right to col-
lect and appropriate the rents and royalties in question until it made
default, and the contract was canceled. Upon the cancellation of
the contract in the mode provided, the rights and interests of the