Rosenbluth v. Hudson Motor Car Co.

• Decision Date: 10 May 1920
• Docket Number: 1997.
• Citation: 265 F. 680
• Parties: ROSENBLUTH v. HUDSON MOTOR CAR CO. et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

265 F. 680

ROSENBLUTH v. HUDSON MOTOR CAR CO. et al.

No. 1997.

United States District Court, E.D. Pennsylvania.

May 10, 1920

Arthur E. Paige, of Philadelphia, Pa., for plaintiff.

W Logan MacCoy, of Philadelphia, Pa., for defendants.

THOMPSON District Judge.

Upon the facts appearing upon the original motion of the Hudson Motor Car Company (hereinafter designated as Hudson) to set aside service made upon John C. Schwartz, president of the Gomery-Schwartz Motor Car Company (hereinafter designated Gomery-Schwartz), the service was set aside. The plaintiff has now moved to vacate that order upon additional affidavits and upon the basis of the contract between Hudson and Gomery-Schwartz. An alias subpoena, subsequently issued, was served upon J. E. Gomery, officer of Gomery-Schwartz, and the defendant Hudson has moved to set aside the service of the alias subpoena.

It is contended on the part of the plaintiff that the contract between the parties, together with the facts set out in the affidavits, shows that Hudson has a regular and established place of business at 128 North Broad street, the place of business of Gomery-Schwartz, and that service made upon the officers of that corporation, as agent of Hudson, is valid under the provisions of section 48 of the Judicial Code (Comp. St. Sec. 1030).

The contract between the parties designates Hudson as manufacturer and Gomery-Schwartz as distributor. Under its terms Hudson gives Gomery-Schwartz the exclusive right to sell Hudson cars from December 1, 1919, to November 30, 1920 in certain territory in Pennsylvania, Delaware and Maryland at certain fixed net prices f.o.b. Detroit, against sight draft and bill of lading attached; any loss after delivery to the transportation company in Detroit to be borne by Gomery-Schwartz and it to cause all cars to be insured upon notification of shipment. Gomery-Schwartz agrees to confine its sales to the designated territory, subject, in case of sale outside of the designated territory, to adjustments between Gomery-Schwartz and other distributors, to be arranged under the control of Hudson. Gomery-Schwartz agrees to keep on hand repair parts, the prices of which are agreed to, and give prompt service to all Hudson cars in the territory. The repair parts are to be furnished exclusively from or have the approval of Hudson, and such parts are to be sold at Hudson's list prices. Agreements with dealers are to be submitted for approval to Hudson before acceptance by Gomery-Schwartz. Gomery-Schwartz is to pay one-half of the cost of advertising decided upon by Hudson in the territory described, the cost to be deducted from any credits due Gomery-Schwartz from Hudson; the advertising to be under the control and with the approval of Hudson. The name 'Hudson' is not to be used, except under restrictions set out, which provide that Hudson is the sole and exclusive owner of that name. Gomery-Schwartz is to sell Hudson cars exclusively. In case Gomery-Schwartz fails to make prompt payment for cars shipped on its order, Hudson has the right to divert the cars to any other destination, or has the privilege of disposing of them to best advantage in the described territory.

The agreement provides for payment of certain commissions by Gomery-Schwartz to other distributors for cars sold in the territory of the latter. There is nothing in the contract between the parties which confers upon Gomery-Schwartz any power to deal with any third party so as to bind Hudson. The contract is entirely a contract between buyer and seller, for sale by Hudson to Gomery-Schwartz, under which the...