Vandam v. Smit

• Decision Date: 20 February 1959
• Parties: Abraham VANDAM v. Carel J. SMIT.
• Court: New Hampshire Supreme Court

Page 289

148 A.2d 289

101 N.H. 508

Abraham VANDAM v. Carel J. SMIT.

Supreme Court of New Hampshire.

Argued Jan. 6, 1959.

Decided Jan. 30, 1959.

Rehearing Denied Feb. 20, 1959.

Booth, Wadleigh, Langdell, Starr & Peters and Stanton E. Tefft, Manchester, for plaintiff.

Jerome L. Silverstein, Nashua, and J. Richard William, Albany, N. Y. (of New York) (specially) for defendant.

KENISON, Chief Justice.

It is not disputed that New Hampshire had jurisdiction of this action in contract (M. H. Parsons & Sons Lumber Co. v. Southwick, 101 N.H. 258, 139 A.2d 883) and 'ordinarily, jurisdiction of actions in contract will not be declined.' Thistle v. Halstead, 95 N.H. 87, 90, 58 A.2d 503, 506. The defendant, however, maintains that the suits should be dismissed under the doctrine of forum non conveniens. The underlying principle of this doctrine is that a court, even though it has jurisdiction, will not exercise it if it is a seriously inappropriate forum for the trial of the action so long as an appropriate forum is available to the plaintiff.

In the typical case the doctrine is employed where the 'maintenance of a suit away from the domicile of the defendant * * * might be vexatious or oppressive'. Thistle v. Halstead, supra, 95 N.H. 89, 58 A.2d 506. In the present case the suit is brought at the defendant's domicile which presents a weak case for declining jurisdiction. Cf. Gore v. United States Steel Corp., 15 N.J. 301, 104 A.2d 670, 48 A.L.R.2d 841.

The factors to be considered in the present situation have been well stated in Restatement of the Law Second, Conflict of Laws, s. 117 e, comment c (tentative draft no. 4, 1957). 'Factors to be considered. The two most important factors look to the court's retention of the case. They are (1) that since it is for the plaintiff to choose the place of suit, his choice of a forum should not be disturbed except for weighty reasons, and (2) that the action will not be dismissed in any event unless an alternative forum is available to the plaintiff. Because of the second factor, the suit will be entertained, no matter how inappropriate the forum may be, if defendant cannot be subjected to jurisdiction in other states. The same will be true if plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept defendant's stipulation that he will not raise this defense in the second state.'

In the record of this case there was evidence that the defendant had sufficient assets in Holland and West Germany to satisfy the plaintiff's alleged claims but there was no evidence that there was any available forum for the effective maintenance of these suits in those jurisdictions. Consequently there was not a choice of forums which the doctrine of forum non conveniens presupposes. Gulf Oil Corp. v. Gilbert, 330...