Goldman v. Parkland of Dallas, Inc. , 7 N.C. App. 400 ( 1970 )

173 S.E.2d 15 (1970) 7 N.C. App. 400

Artie W. GOLDMAN
v.
PARKLAND OF DALLAS, INC.

No. 7018SC42.

Court of Appeals of North Carolina.

April 1, 1970.

Smith, Moore, Smith, Schell & Hunter, by Harold N. Bynum, Greensboro, for defendant appellant.

John R. Hughes and Harry Rockwell, Greensboro, for plaintiff appellee.

HEDRICK, Judge.

The only question raised by the appellant on this appeal is whether the court erred in denying appellant's motion to dismiss in that the North Carolina courts do not have jurisdiction over the person of the defendant.

The North Carolina long arm statute, G.S. § 55-145(a)(1), under which the appellee obtained service of process on the appellant, is as follows:

"(a) Every foreign corporation shall be subject to suit in this State, by a resident of this State or by a person having a usual place of business in this State, whether or not such foreign corporation is transacting or has transacted business in this State and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:

"(1) Out of any contract made in this State or to be performed in this State; or * * *."

G.S. § 55-145(a) is applicable to foreign corporations which are not transacting business in North Carolina but who come within the purview of any one of the four specific and well-delineated areas listed therein. A State court may acquire in personam jurisdiction over a nonresident defendant under principles established by the United States Supreme Court where the nonresident defendant has "minimum contacts" with the State such that the maintenance of the suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S. Ct. 199, 2 L. Ed. 2d 223 (1957). The decision reached by the Supreme Court in International Shoe, supra, marked a substantial departure from the prior standards of "consent", "doing business" and "presence" which were used to measure the permissible extent of judicial power over corporations. McGee, supra. The highwater mark was reached in the McGee case, supra, where the United States Supreme Court, in a unanimous decision, held that the tests laid down in International Shoe, supra, had been met even though there was but a single transaction which gave rise to the suit. To our knowledge the United States Supreme Court has not decided whether a single act, other than an insurance contract, or a single tort, will be sufficient to render a nonresident corporation subject to the jurisdiction of a State court.

The North Carolina Supreme Court, on the single occasion it has had to consider the statute here involved, stated in Byham v. National Cibo House Corp., 265 N.C. 50, 143 S.E.2d 225 (1965):

"A number of states have statutes similar to N.C.G.S. § 55-145(a) (1). [In the judgment below the court inadvertently referred to this statute as G.S. § 55-145(1)]. These statutes generally provide that where the cause of action arises out of a contract with a foreign corporation, made in the forum state or to be performed in whole or in part in such state, an action in personam may be maintained in the forum state, upon substituted service of process. In no instance has such statute been declared unconstitutional. (Citations omitted)."

Clearly, this language indicates that our Supreme Court believes that a single contract, where it is made or to be performed, in North Carolina, is sufficient to subject the nonresident corporation to suit in North Carolina under G.S. § 55-145(a) (1).

The appellant seeks to distinguish the present case from Byham, supra, and from Bowman v. Curt G. Joa, Inc., (4th Cir. 1966), 361 F.2d 706. It should be pointed out that neither of these cases involved a contract which was made in North Carolina but that in both instances the court found that the contract involved was made in another state. In the Byham case, supra, the court found that the contract in question was to be performed in North Carolina and, therefore, had a substantial connection with this state. In Bowman, supra, however, the Fourth Circuit held that a conditional sales contract was not to be performed in North Carolina and was not within the provisions of G.S. § 55-145(a)(1).

The appellant also contends that the contract involved in this case did not have the requisite "minimum contacts" with this state to subject it to in personam jurisdiction. The appellant cites the cases of Erlanger Mills Inc. v. Cohoes Fibre Mills, (4th Cir. 1956), 239 F.2d 502; Shepard v. Rheem Manufacturing Co., 249 N.C. 454, 106 S.E.2d 704 (1959); Putnam v. Triangle Publications Inc., 245 N.C. 432, 96 S.E.2d 445 (1957); and Golden Belt Manufacturing Co. v. v. Janler Plastic Mold Corp., (M.D.N.C.1967), 281 F. Supp. 368, aff'd (4th Cir. 1968), 391 F.2d 267, in support of his contention. The appellant is correct in his statement that these cases stand for the proposition that substantial contacts are required to bring the appellant within G.S. § 55-145(a); however, we do not agree that this standard is applicable to the present case. G.S. § 55-145(a) (1) confers jurisdiction upon our courts when the contract is made or to be performed in North Carolina; therefore, where it is found that the contract was made in North Carolina or was to be performed in North Carolina, a sufficiently substantial contact to confer jurisdiction on the North Carolina courts has been established.

Thus, the essential question for decision is whether the findings of fact made by Judge Collier support his conclusion that the contract was made in North Carolina. It is established law that findings of fact are conclusive if supported by competent evidence even though there is evidence contra. Farmer v. Ferris, 260 N.C. 619, 133 S.E.2d 492 (1963). Judge Collier heard the appellant's motion upon affidavits offered by the parties. The affidavit of Ira Orenstein was to the effect that the written contract between plaintiff and defendant was made and arranged by the affiant in Atlanta, Georgia, in November, 1967, where he and the plaintiff orally agreed to the terms of the contract and that the written agreement was used merely to confirm the oral agreement, and that upon his return to Dallas, Texas, he prepared a letter agreement which he placed in the mail to be delivered to the plaintiff for his signature. The affidavit further states that the agreement was not to be performed in North Carolina and that the plaintiff was present in Dallas sometime in March, 1968, at which time the parties, by mutual consent, decided they would terminate their agreement as of 30 June 1968.

In response to the affidavit filed by defendant, the plaintiff filed three affidavits. The affidavit of Artie W. Goldman was to the effect, that while he was in Atlanta, Georgia, in late October and early November, 1967, as a representative of Smoler Brothers of Chicago, Illinois, he was approached by Orenstein and that Orenstein talked with him regarding the possibility of Goldman undertaking to represent Parkland of Dallas, Inc. His affidavit states that he told Orenstein that he was not very interested in adding another line but that in the event he did decide to represent Parkland he would consider no offer of less than $250.00 per week. His affidavit further states that this was the full extent of his conversation with Orenstein and that nothing was discussed concerning the matters in the contract in paragraph 4, sections A, B, C, D, E, or F, or in paragraphs 5 or 6. He further stated in his affidavit that he received the letter from the defendant sometime later and that the discussion they had had in Atlanta, Georgia, had been completely forgotten by him but that he discussed the offer with Smoler Brothers and decided to accept the defendant's offer and that he signed the letter and mailed it back to the defendant. The affidavits of Mrs. Artie W. Goldman and Leonard Smoler of Smoler Brothers, tended to corroborate and substantiate the affidavit offered by the plaintiff.

For a contract to be made in North Carolina, it must be executed in North Carolina, that is "the ``final act necessary to make it a binding obligation was done' in the forum state." Bowman v. Curt G. Joa, Inc., supra; Byham v. National Cibo House Corp., supra; Bundy v. Commercial Credit Co., 200 N.C. 511, 157 S.E. 860 (1931). The final act in the present case which was necessary to make the agreement a binding obligation, and therefore, a contract, was the depositing of the letter containing the signature of Artie W. Goldman in the mail. An offer by mail, without more, carries with it an implied invitation to accept or reject the offer by mail. Board of Education of Watauga County v. State Board of Education, 217 N.C. 90, 6 S.E.2d 833 (1940). The offer in the present case, however, far exceeded the rule laid down in the Board of Education case, supra. The letter from Parkland of Dallas, Inc., to Artie W. Goldman contained the following sentence: "If the above is agreeable, please sign and return the original copy of this letter." By its own terms the appellant established the method by which appellee could accept its offer.

The findings of fact, which are supported by competent evidence, support Judge Collier's conclusion of law and his order. We hold that the Superior Court of Guilford County has jurisdiction over Parkland of Dallas, Inc., for the purpose of the maintenance of this suit by virtue of the provisions of G.S. § 55-145(a) (1). The order of the court below is

Affirmed.

CAMPBELL and PARKER, JJ., concur.