G. E. M., Inc. v. Plough, Inc.

Henderson, J., delivered the opinion of the Court. This appeal is from a decree enjoining the appellant from selling certain manufactured proprietary articles (chiefly drug products) at prices less than those established by the appellee under Fair Trade contracts with retailers in this State, other than the appellant. The first point raised is that the bill should have been dismissed because the appellee is a foreign corporation, and since it is conceded that it has neither qualified nor registered in Maryland under Code (1957), Art. 23, sec. 90, it is contended that the action cannot be maintained under Art. 23, sec. 91 (c). The statutory bar was raised as an affirmative defense.

The latter subsection provides: “(c) When suit may be maintained by corpora tion.—No suit shall be maintained in any court of this State by any such foreign corporation * * * if such foreign corporation is doing or has done intrastate or interstate or foreign business in this State without having complied with the requirements of § 90 of this article, until such foreign corporation or the person claiming under it has shown to the satisfaction of the court (1) That such foreign corporation * * * has complied with the requirements of § 90 of this article, or ⁴⁸⁶ (2) That neither such foreign corporation nor any foreign corporation successor thereto is continuing to do intrastate or interstate or foreign business in this State, and (3) That such foreign corporation * * * has paid to the Commission the penalty provided for in subsection (d) hereof.” Section 91 (d) provides a penalty of $200 for failure to qualify or register as required under section 90. It seems to us to be too clear for extended argument that the words “doing * * * intrastate or interstate or foreign business in this State”, first enacted by chapter 504 of the Acts of 1937, are no broader than the words “doing business” contained in Code (1924), Art. 23, sec. 119. This was the construction by the Attorney General in 22 Opinions of the Attorney General 256 and 262, and subsequent legislative amendments and reenactments have not altered the key language or the gloss put upon it. Whether a foreign corporation may maintain a suit without qualifying or registering clearly depends upon whether it is “doing business” as defined in the cases on the subject.

We turn to the facts developed in the instant case. The appellee is a Delaware corporation with its principal place of business in Memphis, Tennessee. Mr. Kimpel, an officer of Plough, was called by the appellant as the only witness on the “doing business” question. His testimony may be summarized as follows: Plough has no property, warehouse, office or other address in Maryland of any kind and is not listed in any telephone book.

Plough products flow into Maryland by sales in interstate commerce by common carrier from its main office and plant in Memphis and occasionally from Hackensack, New Jersey, where it has a warehouse, direct to Maryland wholesalers, chain stores, and retailers. Plough has two sales forces, one known as the wholesale sales force which solicits jobbers, wholesale drug and grocery firms, and large chains, the other, the retail sales force which solicits retailers and smaller chains. Plough has one salesman of the retail force who re ⁴⁸⁷ sides in Baltimore. He covers Maryland, Delaware and a part of Pennsylvania.

Two salesmen of the wholesale force also work partly in Maryland. One resides in Wynnewood, Pennsylvania, and the other in Falls Church, Virginia. Between them they cover Pennsylvania, Virginia, West Virginia and Delaware. The salesmen operate from their homes.

They are paid entirely on a commission basis from Memphis. They pay all of their expenses, including the cost of operating and maintaining their own automobiles. None of these expenses is reimbursed by Plough. The salesmen have no authority to make sales or accept orders, but solicit only.

All orders are subject to acceptance or rejection at the main office in Memphis and occasionally in emergency cases at the warehouse in Hackensack. Orders have in fact been rejected from time to time for (a) bad credit, (b) refusal to comply with Fair Trade prices, and (c) for other reasons, including cases where Plough has found the customer to be unreasonable to deal with. The salesmen are furnished with sample kits which they purchase from the company and for which they receive credit on termination of employment. In connection with solicitation they display these samples to prospective customers but do not give away any samples or otherwise deliver any merchandise.

They engage in no promotion of intrastate sales, i.e. sales from Maryland wholesalers to Maryland retailers. Occasionally, in connection with the solicitation of orders they distribute to Plough’s retail customers, free of charge, streamers and other point-of-sale advertising material for the customer’s use. They are instructed to observe the