Charles Keeshin, Inc. v. Gordon Johnson Co., Civ. A. No. 218.

• Decision Date: 05 November 1952
• Docket Number: Civ. A. No. 218.
• Citation: 109 F. Supp. 939
• Parties: CHARLES KEESHIN, Inc. v. GORDON JOHNSON CO.
• Court: U.S. District Court — Western District of Arkansas

109 F. Supp. 939

CHARLES KEESHIN, Inc. v. GORDON JOHNSON CO.

Civ. A. No. 218.

United States District Court W. D. Arkansas, Fayetteville Division.

November 5, 1952.

Ed Jackson, Rogers, Ark., Lawrence Morgan, Fort Smith, Ark., for plaintiff.

Daily & Woods, Fort Smith, Ark., for defendant.

JOHN E. MILLER, District Judge.

The motion of defendant to quash service of summons and to dismiss for lack of jurisdiction of the person of the defendant, and for improper venue, has been considered by me along with the evidence introduced by the respective parties at the hearing on October 17, 1952, and the brief submitted by defendant in support of the motion and the brief submitted by plaintiff in opposition to the motion.

The defendant, to sustain its contentions, introduced the affidavit of Gordon Johnson and the deposition of Carl W. Smith.

The affidavit of Gordon Johnson discloses that the defendant is a corporation organized and existing under and by virtue of the laws of the State of Missouri and that its principal office and place of business is located at 2519 Madison Street, Kansas City, Missouri. Among other things the corporation is engaged in the business of the manufacture and sale of poultry plucking machines and parts thereof. The defendant is not incorporated under the laws of the State of Arkansas and has never maintained any office or place of business in Arkansas. Sales of the products manufactured by defendant are made upon the solicitation of a representative of the defendant. The defendant employs a single sales representative in Arkansas whose territory comprises the States of Arkansas, Oklahoma and Texas. The sales representative's authority is limited to the solicitation of orders for defendant's products and the forwarding of such orders to the office of the defendant in Kansas City, Missouri. All such orders are forwarded by United States mail. The sales representative is furnished with order blanks by the defendant and all solicited orders are subject to the defendant's acceptance or rejection at its office at Kansas City, Missouri. When an order is accepted by the defendant it is filled from the defendant's stock located in Kansas City, Missouri, or the articles are manufactured by defendant and shipped to the purchaser. All shipments and deliveries other than those which may be made by or delivered to a purchaser at the defendant's place of business are in interstate commerce.

The defendant has no property in the State of Arkansas and does not maintain any stock of the machines or products or parts thereof in the State of Arkansas. The sales representative is not supplied with any of the products or parts thereof and does not carry any samples.

The testimony of Carl W. Smith corroborates the statements made by the affiant, Gordon Johnson, president of the defendant corporation.

It was admitted by the defendant that the service of summons on it was made in accordance with Section 27-340, Arkansas Statutes 1947, Annotated.

The plaintiff in support of its contention that the service of summons on defendant is valid introduced the request for admissions of fact filed by it on September 5, 1952, and the response thereto filed on September 15, 1952; also the interrogatories filed by plaintiff on September 5, 1952, and the answers thereto filed on September 15, 1952; the affidavits of J. W. Breeze dated August 15, 1952 and O. F. Larkin dated the same date and filed August 18, 1952; and a supplemental affidavit of O. F. Larkin dated August 20, 1952, together with exhibit thereto filed August 20, 1952.

The plaintiff also introduced witnesses, Charles P. Dodd, Neomia Elliott and O. F. Larkin, whose testimony was given ore tenus.

From all of the testimony adduced by the respective parties and the complaint of plaintiff it appears that the plaintiff at the solicitation of the sales representative of the defendant executed an order for two certain poultry plucking machines on or about July 13, 1949. The order was signed by the plaintiff at its place of business at Rogers, Arkansas, and the order was subsequently forwarded to the defendant in Kansas City, Missouri. The order was accepted by defendant at its place of business in Kansas City, Missouri, and the machines were shipped from Kansas City, Missouri, to the plaintiff on or about July 15, 1949.

On July 9, 1951, the plaintiff was sued in this Court by Anna May Hunt et al. for alleged patent infringement. The plaintiffs in that suit contended that the poultry plucking machines purchased as aforesaid infringed upon a patent owned by them. As a result of the suit the plaintiff was compelled to expend $3,333.33 in payment of a consent judgment.¹ The plaintiff is now seeking to recover said sum together with other damages, from the defendant, and alleges that at the time of the sale of the machines by the defendant that it knew the said machines infringed the patents owned by Anna May Hunt and others.

The plaintiff alleges that the defendant breached the contract of sale and is liable to it because of the breach of an express warranty and an implied warranty.

There is no substantial dispute as to the facts. The contract of sale was consummated in Kansas City, Missouri, and the particular machines were shipped by defendant to plaintiff in interstate commerce from Kansas City, Missouri, to Rogers, Arkansas. The defendant owns no property and has no office in the State of Arkansas. The only contact of the plaintiff with the defendant prior to the consummation of the contract was through the solicitation by the defendant's sales representative of the order for the...