N. K. Parrish, Inc. v. Schrimscher
| Decision Date | 27 November 1974 |
| Docket Number | No. 8507,8507 |
| Parties | N. K. PARRISH, INC., Appellant, v. Fred SCHRIMSCHER, dba Schrimscher Brothers, Appellee. |
| Court | Texas Court of Appeals |
Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellant.
Crenshaw, Dupree & Milam, Cecil C. Kuhne, Lubbock, for appellee.
A breach of contract suit by a Texas corporation against a New Mexico resident was dismissed for lack of jurisdiction upon the trial court's finding of a lack of sufficient minimum contacts by the non-resident with the State of Texas to satisfy due process requirements. The case Sub judice presents a sufficient nexus between the suit and the State of Texas to confer jurisdiction on the trial court. Reversed and remanded.
Plaintiff N. K. Parrish, Inc., is a Texas corporation dealing in the purchase and sale of grain and feed products with its principal place of business in Lubbock, Lubbock County, Texas. Defendant Fred Schrimscher is a resident of Roswell, New Mexico, engaged with his twin brother in, among other businesses, a New Mexico farming enterprise under the name Schrimscher Brothers. In the past, Schrimscher had participated in grain or commodities transactions with people in Texas and he had purchased from Parrish some grain which was shipped out of Texas and some cottonseed F.O.B. Lubbock.
In the course of a telephone conversation between Schrimscher in New Mexico and a Parrish employee in Lubbock, Schrimscher inquired whether Parrish could 'move' a new crop of Tritacale, a cross of wheat and rye, being grown on Schrimscher's New Mexico farmlands. He was advised that he would be, and two days later he was contacted . As the end result of the negotiations, Parrish prepared and mailed a contract to Schrimscher at Roswell. The substance of the contract was that Parrish would purchase from Schrimscher 'approximately 1,500,000#--2,000,000# of Blended Tritacale Wheat' at a quoted price to be delivered at stated intervals to Albuquerque, New Mexico, and Schrimscher would draw drafts therefor on Parrish at Lubbock, Texas. On the face of the contract in bold type were the words: 'THIS CONTRACT PERFORMABLE AT LUBBOCK, TEXAS.'
It is unclear whether Schrimscher was paid for the Tritacale he delivered to Albuquerque as the result of his drafts drawn on or by his invoices mailed to Parrish. It is clear, however, that Schrimscher received periodic payments at his office in Roswell that were made by Parish from its account in a bank in Lubbock County, either by draft drawn by Schrimscher or by checks drawn by Parrish.
Alleging that Schrimscher had failed to deliver the minimum amount of Tritacale called for by the contract, Parrish filed this suit in the County Court at Law No. 2 of Lubbock County seeking damages for breach of contract. Service on Schrimscher was effected in New Mexico pursuant to the directions of the Texas service-of-process-upon-nonresidents statute, Vernon's Ann.Civ.St. art . 2031b. Schrimscher entered a special appearance authorized by Rule 120a, Texas Rules of Civil Procedure, to challenge the court's In personam jurisdiction. Following a hearing, the trial court sustained the challenge and dismissed the suit for lack of jurisdiction, finding as a fact and concluding as a matter of law that Schrimscher did not have sufficient minimum contacts with the State of Texas to satisfy the requirements of the due process clause of the United States Constitution.
Article 2031b, V.A.C.S., colloquially referred to as a long-arm statute, is a statute providing for service of process on non-residents in any action, suit or proceeding arising out of the non-resident's 'doing business in this State' and, so far as material here reads:
Sec. 4. For the purpose of this Act, and without including other acts that may constitute doing business, any * * * non-resident natural person shall be deemed doing business in this State by entering into contract by mail or otherwise with a resident of Texas to be performed in whole or in part by either party in this State * * *.
It has been recognized at both the state and federal levels that the statute represents an effort by Texas to extend its In personam jurisdiction over non-residents to the maximum permitted by the federal constitutional requirements of due process. National Truckers Service, Inc. v. Aero Systems, Inc., 480 S.W.2d 455 (Tex.Civ.App.--Fort Worth 1972, writ ref'd n.r.e.); Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir. 1974)....
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