Crabtree v. Coats & Burchard Co.

Mallakd, C.J. Appellant has only four exceptions and three assignments of error. Defendant’s exception number one is that “(d)efendant objects and excepts to the Findings of Fact for the reason that they are not, sufficient to support the conclusions of law and the judgment.” There was no exception made to any particular finding of fact. This exception is broadside and does not present for review the admissibility of the evidence on which the findings were made or the sufficiency of the evidence to support the findings. 1 Strong, N.C. Index 2d, Appeal and Error, § 28. However, there was ample competent evidence to support the findings of fact made by Judge Copeland, and they are conclusive. Equipment Co. v. Equipment Co., 263 N.C. 549, 140 S.E. 2d 3 (1965); Farmer v. Ferris, 260 N.C. 619, 133 S.E. 2d 492 (1963). [628] Defendant’s exception number two is that “(d)efendant objects and excepts to the Court’s first conclusion of law for the reason that it is not supported by the Findings of Fact and is contrary to law.” Defendant contends that plaintiff’s cause of action did not arise out of business which defendant transacted in North Carolina. G.S. 55-144 reads in pertinent part: “Whenever a foreign corporation shall transact business in this State without first procuring a certificate of authority so to do from the Secretary of State * * * then the Secretary of State shall be an agent of such corporation upon whom any process, notice, or demand in any suit upon a cause of action arising out of such business may be served.” Applying the provisions of this statute, G.S. 55-144 to the facts found by the court, we are of the opinion and so hold that the defendant was a foreign corporation transacting business in this State without obtaining a certificate of authority from the Secretary of State to do so, and that a substantial portion of plaintiff’s cause of action arose out of such business. Mills v. Transit Co., 268 N.C. 313, 150 S.E. 2d 585 (1966). The defendant was conducting business in this State with the plaintiff and other residents of this State and maintained an office in Charlotte for that purpose. This is not a transitory cause of action arising in another state but is local in nature. R. R. v. Hunt & Sons, Inc., 260 N.C. 717, 133 S.E. 2d 644 (1963). Defendant was in the appraisal business and was soliciting and performing appraisal work in North Carolina. It was thus transacting and performing in this State the business for which it was created. See Harrington v. Steel Products, Inc., 244 N.C. 675, 94 S.E. 2d 803 (1956), and Lambert v. Schell, 235 N.C. 21, 69 S.E. 2d 11 (1952). The findings of fact, interpreted in the light of the evidence in this case, show that the activities of the defendant in North Carolina, have been continuous and systematic for several years beginning in 1963. Equipment Co. v. Equipment Co., supra. We do not agree with defendant’s contention that under the factual situation 'here, the provisions of G.S. 55-131 exclude it from the operation of the provisions of G.S. 55-144. Since the defendant does not contend that it has a process agent in North Carolina, service on the Secretary of State is sufficient to bring the defendant into court. G.S. 55-144; G.S. 55-146; Babson v. Clairol, Inc., 256 N.C. 227, 123 S.E. 2d 508 (1962). Defendant also contends that it is not amenable to jurisdiction in North Carolina under the provisions of G.S. 55-145 (a) (1), which reads as follows: [629] “(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 * * We think that the provisions of G.S. 55-145 (a) (1) are also applicable to the factual situation in this case. Even if it should be conceded for the sake of argument that the defendant was not transacting business in this State, the contract made in the State of Illinois between the plaintiff and the defendant was to be substantially performed in the State of North Carolina. The fact that defendant rented and maintained an office for the use of plaintiff is a clear indication that the contract between plaintiff and defendant was to be substantially performed in North Carolina. The foregoing statute, G.S. 55-145 (a) (1), clearly provides a means for bringing the defendant foreign corporation into the courts of this State. We are of the opinion -and so hold that the applicability of G.S. 55-145 (a)(1) is consistent with the Federal requirements of due process. In this case, the minimum contacts necessary to the jurisdiction of the North Carolina courts do exist. International Shoe Co. v. Washington, 326 U.S. 310, 90 L. Ed. 95 (1945). See also Shepard v. Manufacturing Co., 249 N.C. 454, 106 S.E. 2d 704 (1959). In Byham v. House Corp., 265 N.C. 50, 143 S.E. 2d 225 (1965), the action was for damages for a breach of contract by a foreign corporation, and it was held that the requirements of G.S. 55-145(a) (1), subjecting such corporation to suit in North Carolina, were met. The Court pointed out that the contract not only designated the place of performance but also limited its performance to the Durham area. The Court gave a list of several factors to be considered in determining whether the test of “minimum contacts” and “fair play” had been met in order to obtain in personam jurisdiction over a foreign corporation. Applying the rules set out in Byham, we are of the opinion that the facts in this case show substantial contacts within this State. The defendant’s business was a continuing one. A substantial portion of the plaintiff’s alleged cause of action arose out of these substantial contacts within the State. See Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 98 L. Ed. 485, 72 S. Ct. 413; International Shoe Co. v. Washington, supra. [630] Appellant contends in its third exception that the summons was not sufficient to give the court jurisdiction of defendant, in that, it did not direct the sheriff to summon the defendant. We do not agree. The summons, in pertinent part, reads as follows: “To the Sheriff of Wake County, North Carolina — GREETING: YOU ARE COMMANDED TO SUMMON the following named to appear and answer the Complaint of the plaintiff, and the manner of your service shall be the delivery of copies of this Summons and of the Complaint, personally to: Secretary of State, State of North Carolina Defendant Address Coats & Burchard Company 4413 Ravenswood Avenue Chicago, Illinois LET EACH DEFENDANT TAKE NOTICE that, within THIRTY DAYS after the service of this Summons, a written Answer to the Complaint must be filed at the office of the undersigned Clerk, or such other defense asserted as the law allows or prescribes, and that if no appropriate response is made within that time, the plaintiff will apply to the Court for relief demanded in the Complaint.” Defendant cites the case of Distributors v. McAndrews, 270 N.C. 91, 153 S.E. 2d 770 (1967). Distributors is distinguishable from the case before us. In Distributors the summons, which was held to fail to give the court jurisdiction of the defendants, in pertinent part required the sheriff to summon the Commissioner of Motor Vehicles of the State of North Carolina “as process agent for” the named defendants and did not command the sheriff to summon the defendants. The case of Russell v. Manufacturing Co., 266 N.C. 531, 146 S.E. 2d 459 (1966), cited by appellant, is also distinguishable from the case before us. In Russell, the summons, which was held improper, required the sheriff to summon the “local agent” of the corporate defendant and did not command the sheriff to summon the defendant. We think a correct interpretation of the language used in the summons in this case is that the sheriff was commanded to summon the defendant named therein, Coats & Burchard Company, by delivering a copy of the summons and complaint to the Secretary of State. Although we do not consider the summons herein to be a model one, we hold that it was sufficient in form and content to comply with the provisions of G.S. 1-89 (the applicable statute in effect at the time of the issuance and service of this summons). G.S. 1-89 was repealed effective 1 January 1970, and statutory authority relating to the [631] content of a summons is now contained in G.S. 1A-1, Rule 4. The parties stipulated that “the Summons was issued on May 12, 1969, served on the Secretary of State of North Carolina on May 14, 1969, and the Summons and a copy of the Complaint were duly forwarded by the Secretary of State to the Defendant by registered mail.” It does not appear that there was a failure to comply with the provisions of G.S. 55-146. Moreover, the defendant received actual notice of the action. Defendant's fourth exception is to the signing and entry of the order. We fail to find any merit in this exception. We conclude, therefore, that the summons is valid and that the State court has jurisdiction over the defendant herein under the provisions of G.S. 55-144 and also by virtue of the provisions of G.S. 55-145. The order of Judge Copeland is Affirmed. MoRRis and Vaughn, JJ., concur.