State ex rel. Academy Press, Ltd. v. Beckett

• Citation: 581 P.2d 496,282 Or. 701
• Parties: STATE of Oregon ex rel. ACADEMY PRESS, LTD., Plaintiff-Relator, v. William A. BECKETT, as Judge of the Circuit Court for Lane County, Oregon, Defendant. SC 25517.
• Decision Date: 27 June 1978
• Court: Oregon Supreme Court

Page 496

581 P.2d 496

282 Or. 701

STATE of Oregon ex rel. ACADEMY PRESS, LTD., Plaintiff-Relator, v. William A. BECKETT, as Judge of the Circuit Court for Lane County, Oregon, Defendant.

SC 25517.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1978.

Decided June 27, 1978.

Thomas J. Peterson, of Butler, Husk & Gleaves, Eugene, argued the cause and filed the briefs for plaintiff-relator.

Stuart M. Brown, of Young, Horn, Cass & Scott, Eugene, argued the cause for defendant.

TONGUE, Justice.

This is a mandamus proceeding by Academy Press, Ltd., an Illinois corporation, to compel the trial court to quash the service made upon it under ORS 14.035, the Oregon "long-arm statute," in an action against it in the circuit court of Lane County by Jack Hart, a resident of that county. ¹

The motion to quash in the trial court was supported by the affidavit of Jordan Miller which alleged that:

"I am the vice president of defendant Academy Press, Ltd., an Illinois corporation with its principal place of business in the State of Illinois. Academy Press consists of two shareholders (my wife and I) and four employees.

"In September, 1975, I was contacted in Chicago, Illinois by Dominick Abel, a literary agent employed by plaintiff, Jack Hart, with an office in Chicago, Illinois. It was my first contact with Mr. Abel, and it was initiated by him. Prior to this, I had had no contacts with his principal, plaintiff Jack Hart.

"At out first meeting, Mr. Abel spoke to me about plaintiff and plaintiff's manuscript on the Los Angeles Times. This was followed the next day, September 17, 1975, with a letter from Mr. Abel to me, attached to this affidavit as Exhibit 'A' and by this reference expressly incorporated herein, in which Mr. Abel enclosed the manuscript on the Los Angeles Times.

"A contract, dated November 10, 1975, was entered into between Academy Press and plaintiff. Negotiations concerning the terms of the contract took place in Illinois between Academy Press and plaintiff's agent Dominick Abel. I sent a proposed contract to Mr. Abel, who then made all of the handwritten changes in the contract. The contract was then signed by me and returned to Mr. Abel, together with a letter dated December 1, 1975, attached to this affidavit as Exhibit 'B' and by this reference expressly incorporated herein. Neither I nor anyone involved with Academy Press had met with, talked to, or written to plaintiff prior to or during the period of negotiations leading to the signing of the contract.

"Neither my wife nor I have ever been in Oregon. In addition to our Illinois contacts with plaintiff's agent Dominick Abel, plaintiff Jack Hart personally visited our office in Illinois on one occasion after the contract had been signed." ²

In opposition to the motion of Academy Press to quash service of summons, the affidavit of Mr. Hart was also filed in the trial court, and alleged that:

"I entered into a contract for the publication of my history of the Los Angeles Times with Academy Press Limited by my signature in November, 1975, in Eugene, Oregon.

"After the signing of the contract agreement, I did extensive and time-consuming additional editing of the accepted manuscript. This work was done at the request and direction of Academy Press editors. (See Exhibits A through E.) These requested revisions were done from August, 1976 through February, 1977, and involved approximately 480 hours of labor. All of this work for Academy Press was done at their request and in Eugene, Oregon.

"In addition to this extended effort their inducements and encouragement in this period led me to believe that Academy Press would honor its commitment to publish my book. I therefore refrained from submitting my manuscript to other publishers. Since Academy Press repudiated our contract, the manuscript has been submitted to other publishers, who have rejected it, citing as a reason another book on the same subject to be published this year. The significant delay on my part in reliance on Acadmey Press' promises has greatly increased the difficulty in obtaining a publisher."

The exhibits attached to that affidavit included a letter to Mr. Hart dated July 28, 1976, stating, among other things, that the manuscript was "dry and factual and needs livening up" and discussing some of the problems of editing the manuscript, but offering to "write you an official letter reaffirming our intention to publish"; a letter to Mr. Hart dated October 1, 1976, stating that an editor had been hired who would "get back to you on the revisions;" a letter dated October 18, 1976, from the new editor discussing "revisions of your first few chapters," to be done "sentence by sentence" including the "need to strive for compactness and flow," among other things; a further four-page letter dated January 10, 1977, from the editor discussing the need for further revision, and a final letter dated February 18, 1977, from the editor to Mr. Hart expressing dissatisfaction with the "very little progress" in the making of revisions, stating that another book was being published, using "much of your dissertation," so as to "undercut our market" and suggesting that Mr. Hart "should put the project aside."

The petition for an alternative writ of mandamus, as filed in this court, alleges that defendant Beckett, the trial judge, denied petitioner's motion to quash service of the complaint of Jack Hart which alleged two causes of action:

(1) "The contract action alleged that Hart and Academy Press entered into a written contract in Oregon, in which Academy Press promised to publish a book authored by Hart (tentatively titled "The Story of the Los Angeles Times "), that Hart fully performed, and that Academy Press refused to publish the book, to Hart's damage in the amount of $25,000."

(2) "The tort action alleged that, at the time the contract was entered into, Academy Press misrepresented to Hart that Academy Press would publish Hart's book within one year after delivery of a completed manuscript, to Hart's damage in the amount of $25,000, plus $10,000 punitive damages." ³ The petition for an alternative writ of mandamus, as filed in this court, contends that the service of summons should have been quashed on the following grounds:

"(1) The first cause of action, in contract, did not arise out of the transaction of business within the State pursuant to ORS 14.035(1)(a).

"(2) The second cause of action, in tort, did not arise out of the commission of a tortious act within the State pursuant to ORS 14.035(1)(b).

"(3) The constitutional due process notions of fair play and substantial justice are violated by subjecting Relator to the jurisdiction of this State."

A demurrer to the alternative writ of mandamus was filed in this court on behalf of defendant Beckett, as well as an "alternative answer" including the following affirmative allegations:

" * * *r t

"II

"The contract, containing representations that the book would be published within one year, was presented to Jack Hart for acceptance in Oregon and Jack Hart accepted by signing the contract in Oregon.

"III

"Letters were sent by Plaintiff to Jack Hart, in Oregon, with the intent of causing Jack Hart to perform work on the book which was the subject of the contract, all for the pecuniary benefit of Plaintiff.

"IV

"The subject of the contract, a book, is a unique item. It was revised extensively at Plaintiff's request and to Plaintiff's specifications, involved unusual expenditure of labor by Jack Hart, and is not readily marketable elsewhere.

"V

"Substantial economic consequences have been caused within Oregon as a result of the contract and the subsequent letters sent by Plaintiff to Jack Hart. It was foreseeable to Plaintiff, at the time the contract was made and the subsequent letters were sent, that such subsequent economic consequences would occur. These economic consequences accrued to the detriment of Jack Hart and were incurred by him in reliance upon the representations of Plaintiff made in the contract and the letters subsequent thereto.

"VI

"Plaintiff is engaged in Interstate Commerce with regard to the solicitation of manuscripts and the distribution of published books. ⁴

"VII

"The contracts existing between Plaintiff and the State of Oregon with regard to this matter are sufficient to allow assumption of personal jurisdiction over Plaintiff by the Lane County Circuit Court, pursuant to ORS 14.035(1)(a) and (1)(b).

" * * *."cts

The contract cause of action.

This court has previously held that in cases in which the jurisdiction of the court rests upon service of process on a defendant in another state under ORS 14.035 two questions are presented: (1) Does the case fall within the terms of ORS 14.035? If so, (2) Does due process permit an Oregon court, as a matter of constitutional law, to obtain and exercise personal jurisdiction over the defendant in such a case? State ex rel. Western Seed v. Campbell, 250 Or. 262, 270-72, 442 P.2d 215 (1968); Myers v. Brickwedel, 259 Or. 457, 460, 486 P.2d 1286 (1971). That same analysis has been adopted by decisions of the courts of Illinois from which the Oregon long-arm statute was adopted in 1962. See Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761, 762-63 (1961); Kropp Forge Co. v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76, 77 (1962); Koplin v. Thomas, Haab & Botts, 73 Ill.App.2d 242, 219 N.E.2d 646, 648 (1966). See also Levin, The "Long-Arm" Statute and Products Liability, 4 Will L.J. 331, 337 (1967). We have said that decisions by that court interpreting the Illinois statute are "ordinarily persuasive" in interpreting the identical provisions of the Oregon statute. State ex rel. Western Seed v. Campbell, supra, 250 Or. at 271.

Consistent with that view, this court has also adopted the holding of the Illinois court in Gray (176 N.E.2d at 763) that this long-arm statute "contemplates the exertion of jurisdiction over nonresident defe...