50 F. 681 | U.S. Circuit Court for the District of Maryland | 1892
This action was begun in the superior court of Baltimore city. The defendant is an Illinois corporation. The sheriff’s return is: “Summoned the Distilling & Cattle Feeding Company of Illinois, by service on Charles A. Webb, agent; copy of narr. and notice to plead left with defendant.” The defendant, having appeared specially and moved to set aside the return, has removed the case into this court. The reasons urged in support of the motion to set aside the sheriff’s return are that Charles A. Webb, upon whom the writ was served, was not, and is not, an agent of the defendant, or a person in its service, and that the defendant did not transact business within the
There are only two circumstances to which the plaintiff can point as tending to establish its contention that the service of process was within the terms of the Maryland Code; The first is that the persons in Maryland to whom the defendant sold its goods are in its published circulars called its “distributing agents.” Tlie mere name, however, cannot give a representative capacity to a person who does not, in fact, have it, and never attempts to exorcise it. It may be said to be a misleading description, but it did not mislead the plaintiff, as the plaintiff, being so designated itself, knew the moaning of the term. These so-called “distributing agents” were such only in the sense that any wholesale merchant or commission house which handles the goods of a manufacturer may be said to be a distributer of its products, and there is nothing unusual in a manufacturer selling exclusively to one person in a given territory, and insisting that such person shall sell only at fixed prices and upon fixed terms to his customers. The other circumstance is that the so-called “distributing agents” were furnished with a printed rebate certificate, which they were authorized to issue in the name of the defendant to their wholesale customers, payable in Illinois at the end of six months, upon the condition of continuous dealing. This was no more than an authority to sign the defendant’s name to a draft, or to draw a draft to be paid by the defendant in Illinois, if the prescribed conditions were fulfilled.' It was not performing a service for the defendant, but performing a service for the distributer himself, as an inducement to his customer to buy from him the goods which the distributor had bought from the defendant. In no reasonable sense can Webb be said to have stood in any representative character towards the defendant, or to have performed any service lor it, so far as the testimony discloses. He was a buyer, and the defendant was a seller, with the added arrangement that, if the buyer claimed the agreed rebate for himself or for his customer, he was required to comply with the terms agreed upon, and in so complying he performed no service for the defendant, but was serving himself, in order to get back the rebate on the price he had paid or had agreed to pay. InS. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. Rep. 354, the supreme court held that a foreign corporation could not be sued in a state unless it transacted business in that state; and Mr. Justice Fields, delivering the opinion of the court, very fully discusses the character of the transactions and the nature of the employment which are necessarj" to give the requisite representative character to the person on whom process may be served. In the case of U. S. v. American Bell Tel. Co., 29 Fed. Rep. 17, the principles of St. Clair v. Cox were applied to a case very much stronger in its facts than the present one, and