Delprinting Corp. v. C.P.D. Corp., 8026SC339

• Decision Date: 04 November 1980
• Docket Number: No. 8026SC339,8026SC339
• Citation: 271 S.E.2d 548,49 N.C.App. 449
• Court: North Carolina Court of Appeals
• Parties: DELPRINTING CORPORATION, v. C.P.D. CORPORATION.

Page 548

271 S.E.2d 548

49 N.C.App. 449

DELPRINTING CORPORATION, v. C.P.D. CORPORATION.

No. 8026SC339.

Court of Appeals of North Carolina.

Nov. 4, 1980.

Lindsey, Schrimsher, Erwin, Bernhardt, Hewitt & Beddow by Fenton T. Erwin Jr. and Timothy Griffin, Charlotte, for plaintiff-appellee.

Bradley, Guthery, Turner & Curry by Paul B. Guthery Jr., Charlotte, for defendant-appellant.

HILL, Judge.

We hold that Judge Howell was correct in denying defendant's motion. The court has personal jurisdiction over defendant.

The plaintiff North Carolina corporation claims that it and defendant Illinois corporation entered into a contract prior to 1 December 1974 whereby plaintiff agreed to perform work and services for defendant on a continuing basis. Plaintiff claims that it has performed the work and seeks recovery of close to $40,000 plus interest.

"(T)he test to determine if a corporation may be subjected to in personam jurisdiction in a foreign forum depends upon whether maintenance of the suit in the forum offends 'traditional notions of fair play and substantial justice.' " Dillon v. Funding Corp., 291 N.C. 674, 678, 231 S.E.2d 629 (1977), citing International Shoe Co. v. Washington, 326 U.S. 310 at 316, 66 S.Ct. 154 at 158, 90 L.Ed. 95 at 102 (1945).

The first determination this Court must make is whether a North Carolina statute permits the courts of this State to entertain the action against defendant. Dillon, 291 N.C. at p. 675, 231 S.E.2d 629. G.S. 1-75.4(5)(a) confers in personam jurisdiction in any action which:

Arises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to perform services within this State or to pay for services to be performed in this State by the plaintiff;

The president of defendant C. P. D. Corporation, Kennie Turner, stated in an affidavit that his corporation was organized on 18 December 1974 under the laws of Illinois; that prior to the incorporation, at a meeting held on 13 December 1974, "certain individuals agreed to purchase the assets and take over the liabilities of the C. P. Directories Division of C. D. Stampley Enterprises, Inc." Stampley Enterprises was at that time a North Carolina corporation based in Charlotte and had contracted with plaintiff for the production of certain church pictorial directories. Turner goes on to affy that "(i)t was further agreed that C. P. D. Corporation upon its organization would pay Delprinting Corporation (plaintiff) for its work in printing these directories."

On 16 May 1975, plaintiff received a letter on C. P. D. Corporation stationery and signed by the president of C. P. D. The letter stated:

Enclosed please find our check No. 2086 dated May 16, 1975, for the balance due on invoices per the attached list.

Please have Mr. O'Dell (sic) take the necessary steps to see that the agreement we signed with C. D. Stampley Enterprises, Inc. is marked paid. Also ... I would appreciate if you would have a copy of same delivered to Stampley and a copy sent to us. (Emphasis added.)

Upon examination of the "attached list," we find that, after the formation of defendant C. P. D., twenty checks were sent to plaintiff. The last...