Carroll Electric Co. v. Freed-Eisemann Radio Corp., 5140.

• Decision Date: 01 June 1931
• Docket Number: No. 5140.,5140.
• Citation: 60 App. DC 228,50 F.2d 993
• Parties: CARROLL ELECTRIC CO. v. FREED-EISEMANN RADIO CORPORATION.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 228, 50 F.2d 993 (1931)

CARROLL ELECTRIC CO. v. FREED-EISEMANN RADIO CORPORATION.

No. 5140.

Court of Appeals of District of Columbia.

Submitted May 7, 1931.

Decided June 1, 1931.

Chas. A. Douglas and Edmund D. Campbell, both of Washington, D. C., for appellant.

Max L. Rosenstein, of Newark, N. J., for appellee.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

An appeal from an order quashing service of summons upon a foreign corporation.

The Carroll Electric Company, a District of Columbia corporation, plaintiff below, sued the Freed-Eisemann Company, a New York corporation, for damages because of the alleged breach of a contract existing between them relating to certain dealings in radio equipment.

A writ of summons was issued for the defendant, which was returned by the United States Marshal for the District of Columbia with the following indorsement, to wit, "served copies of the declaration, affidavit, and this summons, on the Defendant Corporation within named by serving Fred McCarthy, Salesman, in charge personally, July 18, 1929."

Thereupon, by special appearance, the defendant moved to quash this service, alleging in substance that it was a foreign corporation and was not doing or transacting business in the District of Columbia at the date of the alleged service, and did not have or maintain an office or an agent therein, and that McCarthy upon whom service was made was not a "salesman in charge," nor doing or transacting business for defendant in the District, except for assistance rendered in soliciting orders for merchandise.

This motion was heard upon affidavits and was sustained. The service was quashed, and the present appeal was taken.

This subject is governed by section 373, c. 15, tit. 24, of the Code of the District of Columbia 1929, reading as follows:

"Service on foreign corporations. — In actions against foreign corporations doing business in the District all process may be served on the agent of such corporation or person conducting its business, or, in case he is absent and can not be found, by leaving a copy at the principal place of business in the District, or, if there be no such place of business, by leaving the same at the place of business or residence of such agent in said District, and such service shall be effectual to bring the corporation before the court.

"When a foreign corporation shall transact business in the District without having any place of business or resident agent therein, service upon any officer or agent or employee of such corporation in the District shall be effectual as to suits growing out of contracts entered into or to be performed, in whole or in part, in the District of Columbia or growing out of any tort committed in the said District."'

The relations between the two corporations were created by a written contract called a "Distributor's Franchise" entered into by them in New York City on May 1, 1929, wherein the Freed-Eisemann Radio Corporation is designated as the "Manufacturer" and the Carroll Electric Company as the "Distributor." The following stipulations, among others, appear in the contract.

"1. The Manufacturer agrees to and does hereby grant to the Distributor a Freed-Eisemann Distributor Franchise for the term and subject to the conditions of this Agreement, in the following described territory; District of Columbia, Virginia, Maryland, Part of West Virginia,...