State ex rel. Coral Pools, Inc. v. Knapp, 12216

• Citation: 147 W.Va. 704,131 S.E.2d 81
• Decision Date: 21 May 1963
• Docket Number: No. 12216,12216
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. CORAL POOLS, INC. v. Dennis R. KNAPP, Judge, etc., et al.

Page 81

131 S.E.2d 81

147 W.Va. 704

STATE ex rel. CORAL POOLS, INC. v. Dennis R. KNAPP, Judge, etc., et al.

No. 12216.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1963.

Decided May 21, 1963.

Syllabus by the Court

1. An unambiguous written agreement entered into as the result of verbal negotiations will, in the absence of a showing of fraud or mistake, be conclusively presumed to represent the final agreement of the parties thereto, and parol evidence may not be admitted to prove that the agreement of the parties was different from that expressed in such writing.

2. A written contract may be altered or supplemented by a valid parol contract subsequently made.

3. When a contract results from an offer made in one state and an acceptance in anothr state, the contract generally will be deemed to have been made in the state in which the acceptance occurs.

4. When a foreign corporation which has not qualified to do business in this state in compliance with pertinent statutory provisions is served with process pursuant to the provisions of Code, 1931, 31-1-71, as amended, in an action instituted in a court of this state arising from a contract to be performed in this state and made by such foreign corporation with a resident of this state, the court may obtain personal jurisdiction over such foreign corporation if it appears that the constitutional requirements of due process of law are thereby satisfied. In such circumstances, the constitutional requirements of due process of law are satisfied if it appears that the foreign corporation has had contacts with the state of the forum which are sufficient to make it reasonable and just, according to traditional notions of fair play and substantial justice, to compel the defendant corporation to defend itself in the court of the forum state. It is sufficient for the purposes of due process that the action instituted in the court of the forum state be based on a contract which had substantial connection with that state.

Kay, Casto & Chaney, John S. Haight, John E. Davis, Charleston, for relator.

Steptoe & Johnson, Charles W. Yeager, Charleston, for respondents.

CALHOUN, Judge.

In this original proceeding in prohibition, the petitioner, Coral Pools, Inc., a corporation authorized and existing under the laws of the State of Ohio, seeks to prohibit the respondents, Honorable Dennis R. Knapp, Judge of the Common Pleas Court of Kanawha County, and C. R. Kennedy, from proceeding to trial in a certain civil action pending in that court in which C. R. Kennedy is the plaintiff and Coral Pools, Inc., is a defendant. The prohibition proceeding is based on the claim of Coral Pools, Inc., that it is not subject to the personal jurisdition of the trial court in the civil action.

The summons and a copy of the complaint in the civil action were served upon Coral Pools, Inc., by delivery thereof to Honorable Denzil L. Gainer, Auditor of the State of West Virginia, pursuant to the provisions of Code, 1931, 31-1-71, as amended, a portion of which statute in its present form is as follows:

'Any foreign corporation which shall do any business in this State without having been authorized so to do pursuant to the provisions of section seventy-nine of this article shall be conclusively presumed to have appointed the auditor of the State as its attorney in fact with authority to accept service of notice and process on behalf of and upon whom service of notice and process may be made in this State for and upon every such corporation in any action or proceeding described in the next following paragraph of this section. No act of such corporation appointing the auditor such attorney in fact shall be necessary. * * *

'For the purposes of this section, a foreign corporation not authorized to do business in this State pursuant to the provisions of section seventy-nine of this article shall nevertheless be deemed to be doing business herein if such corporation makes a contract to be performed, in whole or in part, by any party thereto, in this State, or if such corporation commits a tort in whole or in part in this State. The making of such contract or the committing of such tort shall be deemed to be the agreement of such corporation that any notice or process served upon, or accepted by, the auditor pursuant to the next preceding paragraph of this section in any action or proceeding against such corporation arising from, or growing out of, such contract or such tort shall be of the same legal force and validity as process duly served on such corporation in this State.'

The contract in question clearly falls within the statutory language, 'a contract to be performed, in whole or in part, by any party thereto, in this State, * * *.' The basic question presented for decision, therefore, is whether in personam jurisdiction of Coral Pools, Inc., obtained in the circumstances of this case, would be consonant with the constitutional requirements of due process of law.

Coral Pools, Inc., with offices in Columbus, Ohio, is engaged in the business of manufacturing kits for the cnstruction of swimming pools. C. R. Kennedy is engaged in a general contracting and home building business in and near Charleston, West Virginia. On September 8, 1961, Coral Pools, Inc., and C. R. Kennedy entered into a written contract whereby the latter became a 'dealer' for 'promoting, installing and selling' such swimming pool kits in an area within a forty-mile radius of Charleston. Subsequently the same parties entered into an oral contract relating to the use of one of such kits in the construction of a swimming pool on Kennedy's dwelling property at Charleston.

It is undisputed that Coral Pools, Inc., has never qualified to do business within the State of West Virginia and that none of its officers or agents came within this state in connection with the making or execution of the written contract or the oral contract. It appears without dispute also that the written contract was executed at Columbus, Ohio, by the appearance of Kennedy in person at that place and that the oral contract pertaining to the construction of a swimming pool on Kennedy's home property at Charleston was negotiated and made by a telephone conversation between Kennedy at Charleston, West Virginia, and a representative of Coral Pools, Inc., at Columbus, Ohio. Kennedy's position is stated in the respondents' answer as follows: '* * * petitioner entered into contracts to be performed in whole or in part in this state and under the terms and provisions of Chapter 31, Article 1, Section 71 of the 1931 Code of West Virginia, as amended, the petitioner was doing business within the state and subject to the jurisdiction of the courts herein.'

On or about August 15, 1961, Ronald Breeding, a representative of Coral Pools, Inc., from Columbus, Ohio, called C. R. Kennedy by telephone at Charleston, West Virginia, to inquire whether Kennedy would be interested in a contract for installation of swimming pool kits to be sold in the Charleston area by agents or salesmen for Coral Pools, Inc. Kennedy expressed an interest in the proposal and also in becoming a local dealer. Immediately thereafter Breeding sent to Kennedy by mail a detailed set of plans for installation of such swimming pools and a letter requesting an estimate of the cost of installation in the Charleston area. Kennedy submitted by mail an estimate of such cost. On August 24, 1961, Breeding again called Kennedy by telephone, advised him that his cost estimate appeared to be reasonable and arranged for Kennedy to appear in person at the offices of Coral Pools, Inc., at Columbus, Ohio, for a further discussion of the subject. At the consequent conference, tentative arrangements were made for Kennedy to be a made a dealer but it was necessary first to obtain the approval of Robert C. Onderdonk, another agent and representative of Coral Pools, Inc. Such approval was obtained and arrangement was subsequently made by telephone for another appearance of Kennedy at Columbus for a conference with Onderdonk for the purpose of making a contract for the proposed dealership. A written agreement was consequently executed at Columbus, Ohio, on September 8, 1961. In connection with the execution of the written dealership contract, Kennedy made a deposit of $500, 'as a show of good faith', to be applied toward payment for the first pool kit thereafter ordered by him at the regular dealer's price.

On September 19, 1961, Onderdonk, from Columbus, called Kennedy at Charleston by telephone to advise him that the corporation's advertising department was interested in having Kennedy install a display or demonstration pool on his property at Charleston. In the same telephone conversation, Kennedy accepted the offer or proposal thus made to him. In preparation for installation of the pool, Kennedy cut down a number of trees in the lawn adjacent to his dwelling and made therein an excavation approximately forty feet long and twenty feet wide with a depth of approximately three feet at one end and six feet at the other.

On October 3, 1961, Kennedy called Onderdonk by telephone to advise him that he was ready for the pool kit to be shipped and installed. At that point it developed that there was a misunderstanding between Onderdonk and Kennedy concerning the oral contract pertaining to the proposed installation of the pool on Kennedy's property. It was Onderdonk's understanding and recollection of the agreement that Kennedy would pay for the pool kit and that the corporation's advertising department would absorb the cost of the mere installation of the pool on Kennedy's property by allowing him a credit of ten per cent on each of the next ten pool kits ordered by him pursuant to the written dealer agreement. On the other hand, it was Kennedy's understanding and recollection of the agreement that he would permit the pool when installed on his property to be shown to prospective purchasers by...