{ "id": 8722429, "name": "Leslie NIX v. W. B. DUNAVANT, Jr. d/b/a W. B. Dunavant & Company", "name_abbreviation": "Nix v. Dunavant", "decision_date": "1970-12-14", "docket_number": "5-5403", "first_page": "641", "last_page": "650", "citations": [ { "type": "official", "cite": "249 Ark. 641" }, { "type": "parallel", "cite": "460 S.W.2d 762" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "22 Ark. L. Rev. 627", "category": "journals:journal", "reporter": "Ark. L. Rev.", "year": 1969, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "226 Ark. 514", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8722122 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/ark/226/0514-01" ] }, { "cite": "227 Ark. 839", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1705283 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/ark/227/0839-01" ] }, { "cite": "326 U. S. 310", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6157001 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/us/326/0310-01" ] }, { "cite": "248 Ark. 121", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1597722 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/ark/248/0121-01" ] }, { "cite": "411 F. 2d 764", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2191350 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/f2d/411/0764-01" ] }, { "cite": "183 N. E. 2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 1 }, { "cite": "36 Ill. App. 2d 7", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5261212 ], "year": 1962, "opinion_index": 1, "case_paths": [ "/ill-app-2d/36/0007-01" ] }, { "cite": "249 F. 2d 198", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 90128 ], "year": 1957, "opinion_index": 1, "case_paths": [ "/f2d/249/0198-01" ] }, { "cite": "158 N. E. 2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 1 }, { "cite": "16 Ill. 2d 426", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762895 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/ill-2d/16/0426-01" ] }, { "cite": "151 N. E. 2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 1 }, { "cite": "18 Ill. App. 2d 10", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5188432 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/ill-app-2d/18/0010-01" ] }, { "cite": "247 Ark. 442", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600590 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/247/0442-01" ] }, { "cite": "184 S. W. 32", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "122 Ark. 566", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1558128 ], "opinion_index": 1, "case_paths": [ "/ark/122/0566-01" ] }, { "cite": "247 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1600607 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/247/0409-01" ] }, { "cite": "244 Ark. 802", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8723739 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/244/0802-01" ] }, { "cite": "246 Ark. 247", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1604057 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/246/0247-01" ] }, { "cite": "2502 C 1", "category": "reporters:state", "reporter": "Cow.", "opinion_index": 1 }, { "cite": "188 S. W. 564", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "125 Ark. 136", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1553267 ], "opinion_index": 1, "case_paths": [ "/ark/125/0136-01" ] }, { "cite": "265 S. W. 61", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "165 Ark. 535", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1379868 ], "opinion_index": 1, "case_paths": [ "/ark/165/0535-01" ] }, { "cite": "20 S. W. 2d 177", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 1 }, { "cite": "179 Ark. 1113", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726809 ], "opinion_index": 1, "case_paths": [ "/ark/179/1113-01" ] }, { "cite": "205 S. W. 819", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "135 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1571579 ], "opinion_index": 1, "case_paths": [ "/ark/135/0445-01" ] }, { "cite": "231 Ark. 844", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1697205 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ark/231/0844-01" ] } ], "analysis": { "cardinality": 762, "char_count": 14500, "ocr_confidence": 0.848, "pagerank": { "raw": 3.348093532047943e-07, "percentile": 0.8745681698044944 }, "sha256": "e9ea97c1fd10a0c8e2dc63fea2b9e86867bb2ee476530cddbe85679245d55aec", "simhash": "1:5adda12d1beb473e", "word_count": 2461 }, "last_updated": "2023-07-14T17:50:24.525274+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Fogleman and Jones, JJ., dissent.", "I am authorized to state that Jones, J., joins in this dissent." ], "parties": [ "Leslie NIX v. W. B. DUNAVANT, Jr. d/b/a W. B. Dunavant & Company" ], "opinions": [ { "text": "George Rose Smith, Justice.\nThis action was brought by the appellant, Leslie Nix, a resident of Cross County, Arkansas, to recover $9,976 as damages for breach of contract. The defendant, W. B. Dunavant, Jr., a resident of Memphis, Tennessee, appeared specially and moved to quash the service of process, on the ground that he is not subject to suit in Arkansas. The motion was submitted to the trial court upon an affidavit and a counter-affidavit. This appeal is from an order sustaining the motion to quash and dismissing the suit.\nThe Uniform Interstate and International Procedure Act provides that a court may exercise personal jurisdiction over a person as to a cause of action arising from that person\u2019s \u201ctransacting any business in this State.\u201d Ark. Stat. Ann. \u00a7 27-2502 (Supp. 1969). In construing the statute liberally we have pointed out that the \u201ctransaction of any business\u201d is not synonymous with the earlier restrictive term, \u201cdoing business.\u201d Wichman v. Hughes, 248 Ark. 121, 450 S. W. 2d 294 (1970). To the contrary, the purpose of the Uniform Act was to expand the state\u2019s personal jurisdiction over nonresidents, within the limits permitted by due process of law. In Professor Leflar\u2019s words: \u201cPlaintiffs ought ordinarily to be entitled to try their cases where the facts occurred, where witnesses reside and the local law is to be applied. This is in keeping with the \u2018fair play and substantial justice\u2019 standard that the International Shoe case [International Shoe Co. v. Washington, 326 U. S. 310 (1945)] laid down.\u201d Leflar, American Conflicts Law, \u00a7 41 (1968).\nAccording to Nix\u2019s complaint and counter-affidavit, Dunavant is engaged in the business of buying cotton. In December, 1967, Dunavant, acting through Brian Kelley, a resident of Earle, in Crittenden County, Arkansas, negotiated a contract for the purchase of Nix\u2019s three-quarters share of the cotton to be produced by him on 475 acres in Cross County. All the negotiations took place in Arkansas. Kelley also obtained for Dunavant similar contracts from five other Cross County farmers. Kelley was paid by Dunavant for obtaining the contracts.\nThe contract itself was typed on Dunavant\u2019s letterhead. Dunavant agrees in the contract to buy the cotton at a stated price per pound. The contract excludes some cotton, such as that below certain grades. It requires that all cotton eligible under the contract be hand or spindle picked. Nix agrees to practice good farming methods in producing and harvesting the crop, to defoliate before machine picking, and to harvest and gin the crop as fast as practicable after maturity. Dunavant has the privilege of controlling the heat and cleaning equipment used in ginning the cotton. The cotton is to be delivered to a specified compress warehouse in Cross County, with samples being sent to Dunavant.\nThe complaint alleges that Nix complied with the contract in producing, defoliating, spindle picking, and ginning the crop. Dunavant is charged with having wrongfully breached the contract by refusing to purchase and pay for the cotton in accordance with the agreement.\nDunavant\u2019s brief affidavit in support of his motion to quash contradicts hardly any of the facts asserted by Nix. Dunavant asserts that neither he nor his company, a partnership, owns any property, maintains any office, or has any agents in Arkansas. We quote the pivotal paragraph in the affidavit:\nThat the contract which is the basis of this suit was executed in the City of Memphis, Tennessee, by W. B. Dunavant 8c Co. and was negotiated in the first instance by Brian Kelley, who was an independent cotton broker and merchant in Earle, Arkansas, and who did business as such with W. B. Dunavant & Co., and presumably with other persons and firms who were engaged in the same or similar businesses.\nThe motion to quash the service of course admits such assertions of fact in the complaint as are not controverted by the motion. Moreover, the burden is on the moving party to produce evidence to sustain the allegations of the motion. Running v. Southwest Freight Lines, 227 Ark. 839, 303 S. W. 2d 578 (1957). Tested by that rule, we find Dunavant\u2019s affidavit insufficient to sustain his motion.\nThe only point of fact that might be said to be controverted is whether Brian Kelley acted as Duna-vant\u2019s agent. Nix asserts positively that Kelley was in fact Dunavant\u2019s agent or broker. He asserts that Kelley \u201cmet with Plaintiff and other cotton producers in Cross County and outlined the terms of the contract and whom it was with.\u201d The contract, which was presented by Kelley for Nix\u2019s signature, was typed on Dunavant\u2019s stationery. Nix also states that Kelley was paid by Duna-vant for obtaining the contracts.\nNone of those statements are actually denied by Dunavant\u2019s affidavit. He merely alleges, as a conclusion of law, that Kelley was \u201can independent cotton broker and merchant.\u201d A broker, however, is ordinarily the agent of the person who pays him. Morrison v. Bland, 226 Ark. 514, 291 S. W. 2d 243 (1956); Bouvier\u2019s Law Dictionary (8th ed., 1914). Kelley certainly was not representing both parties in negotiating the terms of the contract. Thus it is actually an undisputed fact that Dunavant, acting through his agent, negotiated the agreement in Arkansas. There is, as we have said, no other point of fact even ostensibly in controversy.\nWe have said that \u201ca person who avails himself of the privilege of conducting activities in another state is subject to suit there if his contracts in -that state have been such that the maintenance of the suit would not offend traditional notions of fair play and substantial justice.\u201d Wichman v. Hughes, supra. With specific reference to contracts, Leflar states: \u201cA number of cases have presented the question whether the making of a contract in the state suffices to sustain the state\u2019s jurisdiction in causes of action arising out of the contract. If local completion of the contract were by happenstance merely, as between parties who were airline passengers flying over the state, with no other local contacts in the transaction, the answer would be negative. The substantiality of contracts should not be so mechanically measured. But if the contract was made in F by deliberate choice as a place of contracting, or because that was where the contemplated transaction was centered, or because the contract was to be performed there, the contracts are substantial.\u201d Leflar, supra, \u00a7 43. Moreover, even though, as here, the final execution of the agreement takes place outside the state, the necessary contracts may be found to exist if the contract is to be performed here. Woods, The Uniform Long-Arm Act in Arkansas, 22 Ark. L. Rev. 627, 633 (1969).\nHere the necessary contacts with Arkansas were far beyond the minimum required by due process. Duna-vant negotiated the agreement through his paid agent in Arkansas. The contract involved an Arkansas crop to be produced on Arkansas land. The grower was required to conform to exact specifications in the production, harvesting, and ginning of the crop, all of which were to take place in Arkansas. Dunavant reserved the privilege of controlling the heat and cleaning equipment to be used in ginning \u2014 activities for his own protection that had to be performed in Arkansas. When ginned, the cotton was to be delivered to a warehouse in Arkansas.\nBy contrast, the contract has hardly any connection with the state of Tennessee. Dunavant lives there. He signed his name there. The samples and warehouse receipts are to be sent there. That is all. Upon the record we have no hesitancy in reaching the conclusion that Dunavant is fairly and lawfully subject to suit in this state for breach of contract.\nReversed.\nFogleman and Jones, JJ., dissent.", "type": "majority", "author": "George Rose Smith, Justice." }, { "text": "John A. Fogleman, Justice,\ndissenting. I disagree with the majority because I think that there was substantial evidence to support the findings of the trial judge.\nAppellee alleged that he did not, at any time material, transact any business in this state or contract to supply services or things in this state and was not subject to service of process.\nWhenever the trial judge decides any fact question, in a law case, either interlocutory or preliminary to trial, his decision will be sustained on appeal if there is any substantial evidence to support it. Rome v. Ahlert, 231 Ark. 844, 332 S. W. 2d 809. Whenever the law makes a circuit judge the trier of the facts, the same presumption attends his finding as when a jury is waived by the parties, and when the finding is sustained by substantial evidence it is conclusive on appeal. Cady v. Pack, 135 Ark. 445, 205 S. W. 819; Creekmore v. Scott, 179 Ark. 1113, 20 S. W. 2d 177; Little River County v. Buron, 165 Ark. 535, 265 S. W. 61; Matthews v. Clay County, 125 Ark. 136, 188 S. W. 564.\nThe principal issue before the court was whether appellee was transacting business in the state in the sense of Ark. Stat. Ann. \u00a7 27-2502 C 1 (A) (Supp. 1969). The only evidence before the court was the affidavits of the respective parties. Neither party objected to this procedure or to the admissibility of any statement in the affidavit of the other. If conclusions were stated, they were entitled to be considered as evidence in the absence of objection. Nelson v. Busby, 246 Ark. 247, 437 S. W. 2d 799; Insured Lloyds v. Mayo, 244 Ark. 802, 427 S. W. 2d 164; Judy v. McDaniel, 247 Ark. 409, 445 S. W. 2d 722.\nPertinent parts of appellee\u2019s affidavit were:\n1. My name is W. B. Dunavant, Jr. I am an individual residing in Memphis, Shelby County, Tennessee, and I am a member of the firm of W. B. Dunavant & Co. which does a cotton business in the City of Memphis, Shelby County, Tennessee. Said firm is a partnership composed of W. B. Dunavant, Jr., and others and has been engaged in the business of buying and selling cotton in the City of Memphis, Tennessee, since the year 1960. That this defendant has no independent business of his own nor does he engage in the cotton business as a proprietor of W. B. Dunavant & Co.\n2. That neither W. B. Dunavant, Jr., nor W. B. Dunavant & Co., a partnership, have an interest in, use, or possess real property in the State of Arkansas nor did they, during the times pertinent to the motion in question.\n3. That the contract which is the basis of this suit was executed in the City of Memphis, Tennessee, by W. B. Dunavant & Co. and was negotiated in the first instance by Brian Kelley, who was an independent cotton broker and merchant in Earle, Arkansas, and who did business as such with W. B. Dunavant 8c Co. and presumably with other persons and firms who were engaged in the same or similar businesses.\n4. That neither affiant nor W. B. Dunavant 8c Co., a partnership, maintain any offices in the State of Arkansas, nor do they have any agents in the State of Arkansas, nor did they have any offices or agents at any time or times material to this motion.\nWhile the allegations of this affidavit were controverted by appellant\u2019s affidavit, the trial judge was confronted with conflicting evidence as to the status of Kelley. If he accepted Dunavant\u2019s version Kelley acted as an independent broker in negotiating with Arkansas farmers, and not as an agent of Dunavant, who said he had no agents in Arkansas at any time material to the motion. I consider this affidavit to be substantial evidence of the facts therein stated so that we cannot say that appellee was transacting any business in this state through Kelley. The facts that Kelley was compensated by Dunavant after the contracts were entered into ana that Kelley, after having negotiated with the Arkansas farmers, presented them with contracts on Dunavant\u2019s stationery are merely evidence of agency, but not necessarily controlling on the fact question.\nWe made it quite clear in Tomlinson Chair Mf. Co. v. Jop-Pa Mattress Co., 122 Ark. 566, 184 S. W. 32, that a broker who was not an employee of a wholesaler of merchandise, but who negotiated sales between the wholesalers and merchants, receiving compensation from the wholesaler by way of commission, and who dealt with other wholesalers, giving orders to whichever one he deemed proper, was not the agent of the wholesaler.\nI agree that the test for transacting business in the state under the Interstate and International Procedure Act is far different from the \u201cdoing business\u201d test of earlier statutes. Yet, when the actions of Kelley are eliminated, I cannot see how it can be said that Dunavant was either transacting business in Arkansas or contracting to supply services or things in Arkansas. The contract was presented to and signed by Dunavant in Tennessee. It became a Tennessee contract. Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S. W. 2d 893. Dunavant did absolutely nothing in Arkansas and did not contract to do anything in Arkansas. Appellant relies upon the fact that the cotton to be bought by Dunavant was to be planted, produced, ginned and delivered in Arkansas. Yet none of this was to be done by Dunavant, and the \u201cdelivery\u201d would be to the Federal Compress and Warehouse Company\u2019s warehouse in Wynne, not to Dunavant. The samples were to be delivered to Dunavant in Memphis, Tennessee. Dunavant was to be billed upon warehouse receipts issued for this cotton.\nThe \u201clong-arm\u201d act should be liberally construed. The Commissioners\u2019 note stated that it should be given the same expansive interpretation intended by the draftsman of the Illinois act and given by the courts of that state. I agree, but I do not believe that the courts of Illinois would give the act the same expansive application as the court is giving here. See Grobark v. Addo Machine Co., 18 Ill. App. 2d 10, 151 N. E. 2d 425, aff\u2019d 16 Ill. 2d 426, 158 N. E. 2d 73 (1959); Orton v. Woods Oil & Gas Co., 249 F. 2d 198 (7th Cir. 1957); Saletko v. Willys Motors Co., Inc., 36 Ill. App. 2d 7, 183 N. E. 2d 569 (1962); Tommills Brokerage Company v. Loeb, Rhoades & Company, 411 F. 2d 764 (7th Cir. 1969). I also doubt the establishment of the requisite \u201cminimal contacts.\u201d\nI would affirm the judgment.\nI am authorized to state that Jones, J., joins in this dissent.\nThe question was raised by the wholesaler by asserting that the broker had no authority to employ subagents.", "type": "dissent", "author": "John A. Fogleman, Justice," } ], "attorneys": [ "Shaver Jr Shaver, for appellant.", "Armstrong, Allen, Brandon, Goodman, McBride Jr Prewitt, Memphis, Tenn., and Rieves Jr Rieves, for appellee." ], "corrections": "", "head_matter": "Leslie NIX v. W. B. DUNAVANT, Jr. d/b/a W. B. Dunavant & Company\n5-5403\n460 S. W. 2d 762\nOpinion delivered December 14, 1970\nShaver Jr Shaver, for appellant.\nArmstrong, Allen, Brandon, Goodman, McBride Jr Prewitt, Memphis, Tenn., and Rieves Jr Rieves, for appellee." }, "file_name": "0641-01", "first_page_order": 663, "last_page_order": 672 }