Petition — National Alfalfa Dehydrating & Milling Co. v. American Pollution Prevention Co.

Supreme Court, U. 8.

Téa

12 1975

MICHAEL RODAK, JR_CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. Te QZ 1 4

AMERICAN POLLUTION PREVENTION

COMPANY, INC.,

Respondent,

VS.

NATIONAL ALFALFA DEHYDRATING AND MILLING

COMPANY,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

ALBERT THOMSON

Floor Three

Columbia Union Bank Building

Kansas City, Missouri 64106

Counsel for Petitioner

LINDE ‘THOMSON FAIRCHILD

LANGWORTHY & KOHN

Of Counsel

FE. L. Menpennats, Inc., 926 Cherry Street, Kansas City, Mo. 64106, 421-3030

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Oe a EEE EER 2

NEES ED RO reer 2

Statement of the Case ........ saierliaiidacaimace teil dae 4

Reasons for Granting the Writ ............. siacsclelahaidlaliaiiibindecliae 6

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Appendix A—Opinion of the Minnesota Supreme Court Al

Appendix B--Order of the State Trial Court ................ A7

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Appendix C—Plaintiff’s Complaint 2.000000... Al0

Exhibit A—Amended Purchase Agreement ............ Al2

Letter to Mr. Lowell Creach from Burnell D.

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Appendix D—Answer and Counterclaim ....................... A20

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Appendix E—Reply to Counterclaim ..00..00.........ceeees A24

Appendix F—Motion to Dismiss for Lack of Personal

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Appendix G—Affidavits of George P. Hoke and Albert

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Appendix H—Affidavit of A. P. McMaster .................... A29

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II

Table of Authorities

CASES

Aftanase v. Economy Baler Company, 343 F.2d 187

SEI TL, TRIE cussescsesshatesconsstinnctinncabveticnniaiaienstinninensinmmiames 9

Amco Transworld, Inc. v. M/V Bambi, 257 F. Supp. 215

UNTIL, TUITIIIEED oss cassesessciieessieiinipidansetaatelidnamaanashiiniamaetniin 9

Benjamin v. Western Boat Building Corporation, 472

oe gh Benen en 10

Bowman v. Curt G. Joa, Inc., 361 F.2d 706 (4th Cir.

TTT. <<sentisniasnsipsnseeonteideeneabateseemnmmnnnielesabieiiianiatiaieebiaianatetaianiauaiditi 11

Braasch v. Vail Associates, Inc., 370 F. Supp. 809 (N.D.

SE IE ceisdienianinneniestinieseaiuitanaiidesninasinaaiannsuenaiastnaiemividenndeititie 8,9

Fannin v. Chesapeake and Ohio Railway Company, 204

aan 10

Fourth Northwestern National Bank of Minneapolis v.

Hilson Industries, Inc., 264 Minn. 110, 117 N.W.2d

TUTE SEUIIIITIED . cucchdomesccnpinasiiiaenébinilauneinnniddditinmaindtinnbiinienbetmenn 9

Golden Belt Manufacturing Co. v. Janler Plastic Mold

Corp., 281 F. Supp. 368 (M.D. N.C. 1967) ......0..00......... 8

Hanson v. Denckla, 357 U.S. 235 (1958) 0.02... eseeeeeee 7,8

International Shoe Co. v. State of Washington, 326 US.

I aaa en aa ili aliallcadeien 7

Marshall Egg Transport Company v. Bender-Goodman

Co., Inc., 275 Minn. 534, 148 N.W.2d 161 (1967) ........ 9

Mueller v. Steelcase, Inc., 172 F. Supp. 416 (D. Minn.

ERE EEL CELLS On rare ere) eee ene eS 8

Perkins v. Benguet Consolidated Mining Co., 342 US.

Ie vA sacs dialghionaaeaileinltieinanianeenninnenieniensieiia 9,10, 11

Pennoyer v. Neff, 95 U.S. 714 (1878) ..2...0...ceceeeeeeeeseeeeee 7

Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745 (4th

Cir.), cert. denied, 404 U.S. 948 (1971) 000000. 10

Ill

Thompson v. Kiekhaefer, 372 F. Supp. 715 (D. Minn.

I aceite dalle dacac a dccieliaeddilabaunanhecabseiaatlaens 11

Tommills Brokerage Company v. Loeb, Rhoades &

Company, 411 F.2d 764 (7th Cir. 1969) 0000. 9

Washington Scientific Indus., Inc. v. Polan Indus., Inc.,

302 F. Supp. 1354 (D. Minn. 1969) 20000000. 11

CONSTITUTIONAL PROVISIONS AND STATUTES

pO EE ee 2, 6,11

a 3,4

U.C.C. Section 2-310(a), Neb. Rev. Stats. (1971) 3,5,7,11

In the Supreme Court of the United States

OCTOBER TERM, 1975

AMERICAN POLLUTION PREVENTION

COMPANY, INC.,

Respondent,

vs.

NATIONAL ALFALFA DEHYDRATING AND MILLING

COMPANY,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE

MINNESOTA SUPREME COURT

Petitioner, National Alfalfa Dehydrating and Milling

Company, prays that a Writ of Certiorari issue to review

the judgment of the Minnesota Supreme Court entered in

the above-entitled case on May 23, 1975.

OPINIONS BELOW

The Order of the State Trial Court is unreported and

is printed in Appendix B hereto.

The Opinion of the Minnesota Supreme Court, printed

in Appendix A hereto, is reported in 230 N.W.2d 63. It af-

firmed the State Trial Court’s denial of Petitioner’s motion

to dismiss for want of personal jurisdiction.

JURISDICTION

The judgment of the Minnesota Supreme Court was

entered May 23, 1975. Jurisdiction of this Court is invoked

under 28 U.S.C. Section 1257(3).

QUESTIONS PRESENTED

The questions presented are:

(1) Whether the Minnesota corporate long-arm stat-

ute is applicable in view of the fact that payment under

the contract is controlled by Nebraska law and such re-

quires payment to be made in Nebraska, and

(2) Whether the assertion of in personam jurisdiction

over the Petitioner, a foreign corporation, by the State of

Minnesota, denies Petitioner’s right to due process because

the necessary “contacts” with the State of Minnesota do

not exist.

CONSTITUTIONAL PROVISIONS

The constitutional provision involved is the Due Pro-

cess Clause of the Fourteenth Amendment to the Constitu-

tion of the United States, U.S.C.A., Const. Amend. XIV,

Section 1, which provides as follows:

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State where-

in they reside. No State shall make or enforce any

3

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

The statutes involved are:

Minn. Stats. 303.13, subd. 1(3), which provides as

follows:

Subdivision 1. A foreign corporation shall be sub-

ject to service of process, as follows:

(3) If a foreign corporation makes a contract with a

resident of Minnesota to be performed in whole or in

part by either party in Minnesota, or if such foreign

corporation commits a tort in whole or in part in Min-

nesota against a resident of Minnesota, such acts shall

be deemed to be doing business in Minnesota by the

foreign corporation and shall be deemed equivalent to

the appointment by the foreign corporation of the

secretary of the state of Minnesota and his successors

to be its true and lawful attorney upon whom may be

served all lawful process in any actions or proceedings

against the foreign corporation arising from or growing

out of such contract or tort.

U.C.C. Section 2-310(a), Neb. Rev. Stats. (1971), which

provides as follows:

Unless otherwise agreed

(a) payment is due at the time and place at which

the buyer is to receive the goods even though the

place of shipment is the place of delivery;

STATEMENT OF THE CASE

On January 4, 1974, Respondent, American Pollution

Prevention Company, Inc. (APPCO) and Petitioner, Na-

tional Alfalfa Dehydrating and Milling Company (Na-

tional Alfalfa) entered into an Amended Purchase Agree-

ment (Appendix C, Al2-A18) for the purchase of 3,800 head

of Oakie Feeder Steers by National Alfalfa. The Amended

Purchase Agreement was executed in O’Neill, Nebraska

(Appendix G) and it called for the shipment of cattle, from

various locations in Nebraska and South Dakota, to Na-

tional Alfalfa’s feedlot in Nebraska. Upon APPCO’s fail-

ure to deliver the cattle within the specified delivery dates,

National Alfalfa rescinded the contract. Hence, APPCO

brought this cause of action in Hennepin County, Minne-

sota for breach of contract (Appendix C). Jurisdiction in

Minnesota was based on Minn. Stats., Section 303.13, subd.

1(3) which provides as follows:

Subdivision 1. A foreign corporation shall be subject to

service of process, as follows:

(3) If a foreign corporation makes a contract with a

resident of Minnesota to be performed in whole or

in part by either party in Minnesota, or if such foreign

corporation commits a tort in whole or in part in Min-

nesota against a resident of Minnesota, such acts shall

be deemed to be doing uisiness in Minnesota by the

foreign corporation and shall be deemed equivalent to

the appointment by the foreign corporation of the sec-

retary of the state of Minnesota and his successors to

be its true and lawful attorney upon whom may be

served all lawful process in any actions or proceedings

against the foreign corporation arising from or growing

out of such contract or tort.

)

National Alfalfa denied the breach and counterclaimed for

failure to deliver within the specified delivery dates (Ap-

pendix D), which Respondent denied (Appendix E).

Following an unsuccessful attempt to remove the cause

of action to the Federal District Court of Minnesota, Na-

tional Alfalfa moved to dismiss the cause of action on the

ground that Minnesota lacked personal jurisdiction over it,

a foreign corporation (Appendix F). On May 23, 1975,

the Minnesota Supreme Court affirmed the trial court’s

denial (Appendix B) of such motion (Appendix A).

APPCO is a Delaware corporation having its principal

place of business in Minnesota. National Alfalfa is a Dela-

ware corporation having its principal place of business in

Shawnee Mission, Kansas. National Alfalfa is not licensed

to do business and has never maintained an agent for ser-

vice of process in Minnesota. National Alfalfa has no of-

fice, mailing address, telephone listing, bank account, or

employees who reside in Minnesota. Nor does it own, lease

or possess any real or personal property in Minnesota.

The only evidence of contacts, which National Alfalfa

has with Minnesota, is based upon an affidavit by A. P.

McMaster, Vice President of APPCO (Appendix H). Al-

though unsupported by any language in the Amended Pur-

chase Agreement, McMaster’s affidavit alleges that pay-

ment was to be made in Minnesota. Both the trial court

and the Minnesota Supreme Court found that since pay-

ment was to be made in Minnesota, such satisfied the re-

quirement under the Minnesota corporate long-arm statute.

However, it now appears that the place of payment is con-

trolled by Nebraska law and such requires payment be

made in Nebraska, U.C.C. Section 2-310(a) Neb. Rev. Stats.

(1971).

6

Based upon the erroneous statement that payment was

to be made in Minnesota, the Minnesota Supreme Court

went on to hold that Minnesota could assert in personam

jurisdiction over National Alfalfa without violating the Due

Process Clause of the Fourteenth Amendment to the Con-

stitution of the United States. The decision was based upon

the fact that National Alfalfa had sufficient contacts with

Minnesota. Other than the erroneous affidavit concerning

payment and two discussions involving the general business

relations between APPCO and National Alfalfa, all other

contacts with Minnesota were based merely upon McMas-

ter’s information and belief and they are totally unrelated

to the instant cause of action. These contacts involved the

shipment of dehydrated alfalfa to certain firms in Minne-

sota, none of whom are a party to this action. Such con-

tacts are totally unrelated to this cause of action which

centers around an Amended Purchase Agreement (Appen-

dix C, Al2-A18). This agreement was executed in Nebraska

(Appendix G), called for the shipment of cattle from vari-

ous locations in Nebraska and South Dakota to Petitioner’s

feedlot in Nebraska, and was to be construed in accordance

with Nebraska law—it was clearly a Nebraska transaction.

At present, trial of the instant cause of action on the

merits is pending this Court’s determination of whether

Minnesota’s assertion of in personam jurisdiction violates

the Due Process Clause of the Fourteenth Amendment to

the Constitution of the United States.

REASONS FOR GRANTING THE WRIT

1. In determining whether a State has jurisdiction

over a foreign corporation, the first step is to ask whether

the limitations, under the State’s long-arm: statute, exclude

the present suit, Aftanase v. Economy Baler Company, 343

7

F.2d 187 (8th Cir. 1965). In applying this analysis to the

instant action, the Minnesota corporate long-arm statute re-

quires that the contract be performed in whole or in part

in Minnesota.

The only evidence of performance in Minnesota is the

affidavit of A. P. McMaster which states that payment was

to be made in Minnesota. However, since the Amended

Purchase Agreement (Appendix C, Al2-A18) is silent as to

the place of payment, the law of Nebraska controls and it

requires that payment be made in Nebraska at the place of

delivery, U.C.C. Section 2-310(a) Neb. Rev. Stats. (1971).

Hence, the instant facts do not come within the purview

of the Minnesota corporate long-arm statute.

The decision was based on McMaster’s affidavit which

stated that payment was to be made in Minnesota. How-

ever, this affidavit is not controlling in view of the fact

that the Nebraska Uniform Commercial Code specifically

requires that payment be made in Nebraska, the place of

delivery. There is no basis for applying the corporate long-

arm statute because no part of the contract was to be per-

formed in Minnesota. Moreover, Minnesota’s assertion of

in personam jurisdiction over National Alfalfa extends be-

yond due process limitations.

2. Although the concepts of in personam jurisdiction

over a foreign corporation have evolved from the rigid rule

of Pennoyer v. Neff, 95 U.S. 714 (1878), to the flexible

standards of International Shoe Co. v. State of Washing-

ton, 326 U.S. 310 (1945), such evolution does not imply

the demise of territorial limitations on the in personam

jurisdiction of State courts. Hanson y. Denckla, 357 US.

235 (1958).

If a foreign corporation enters into a contract with a

Minnesota resident and any portion of such contract is to

8

be performed by either party in Minnesota, such falls

within the reach of Minnesota’s corporate long-arm stat-

ute. It may be that Minnesota has attempted by this

statute to thrust aside all jurisdictional barriers, but such

an attempt badly offends the Federal Constitution, cf.

Mueller v. Steelcase, Inc. 172 F. Supp. 416, 419 (D. Minn.

1959). If the breadth of this statute encompasses a con-

tract made in another state which requires some unilat-

eral performance in Minnesota, by a Minnesota resident,

such encompassing jurisdictional power opposes the de-

cisions of this court, Hanson v. Denckla, 357 U.S. 235 (1958).

3. The only Minnesota contacts from which the in-

stant action arises are based upon McMaster’s affidavit.

There he stated that two meetings were held in Minne-

sota where the business relations of National Alfalfa and

APPCO were discussed. He also stated that payment for

the cattle was to be made in Minnesota, though such was

unsupported by the Amended Purchase Agreement, and

is in direct conflict with applicable Nebraska law.

Even if payment were to be made in Minnesota, the

meager contacts of payment and preliminary meetings do

not, within the confines of the Due Process Clause, allow

Minnesota to assert personal jurisdiction over a foreign

corporation where the contract was substantially made

and to be performed in Nebraska. Golden Belt Manufac-

turing Co. v. Janler Plastic Mold Corp., 281 F. Supp. 368

(M.D. N.C. 1967). In Braasch v. Vail Associates, Inc., 370

F. Supp. 809 (N.D. Ill, 1973), the court stated that the

mere payment of money, shipment of goods into, or ad-

vertising in a State would not confer personal jurisdiction

on that State, Id. at 814.

The Supreme Court of Minnesota has held that where

the only connection with Minnesota is the payment of

9

money in that State, such contact is less than the mini-

mum contacts required by “traditional notions of fair play

and substantial justice.” Fourth Northwestern National

Bank of Minneapolis v. Hilson Industries, Inc., 264 Minn.

110, 117 N.W.2d 732 (1962); accord Marshall Egg Trans-

port Company v. Bender-Goodman Co., Inc., 275 Minn.

534, 148 N.W.2d 161 (1967). Even though these Minne-

sota decisions are not binding on the Federal question of

due process, they are of weight, Aftanase v. Economy

Baler Company, 343 F.2d 187 (8th Cir. 1965), and such

decisions may further limit the extensions of a State’s per-

sonal jurisdiction, see Perkins v. Benguet Consolidated

Mining Co., 342 U.S. 437, 440 (1952); Aftanase v. Economy

Baler Company, 343 F.2d 187 (8th Cir. 1965).

The two business trips to Minnesota to discuss the

business relations between National Alfalfa and APPCO

fall far short of the confines of due process. Tommills

Brokerage Company v. Loeb, Rhoades & Company, 411

F.2d 764 (7th Cir. 1969); Amco Transworld, Inc. v. M/V

Bambi, 257 F. Supp. 215 (S.D. Tex. 1966).

The mere existence of a business relationship with a

resident of the forum State does not automatically confer

jurisdiction on that state, Braasch v. Vail Associates, Inc.,

370 F. Supp. 809 (N.D. Ill. 1973).

4. Regarding the question of due process, the Min-

nesota Supreme Court seemingly based its holding upon

National Alfalfa’s shipment of dehydrated alfalfa to vari-

ous Minnesota firms. However, such contacts are unre-

lated to the instant cause of action.

In Perkins v. Benguet Consolidated Mining Co., 342

U.S. 437 (1952) this Court held that the forum State may

assert personal jurisdiction in a cause of action not aris-

ing out of the activities in the forum State where the ac-

10

tivities in the forum State involved the supervision of all

wartime activities of the foreign corporation.

In Ratliff v. Cooper Laboratories, Inc., 444 F.2d 745

(4th Cir.), cert. denied, 404 U.S. 948 (1971), it was stated

that if the plaintiff’s injury does not arise out of some-

thing done in the forum State, then other contacts be-

tween the corporation and state must be fairly extensive

before the burden of defending a suit there may be im-

posed without offending “traditional notions of fair play

and substantial justice.”

Unlike the defendant in Perkins v. Benguet Consoli-

dated Mining Co., supra, National Alfalfa does not super-

vise its entire operations from Minnesota. The casual

Minnesota “contacts” involve the shipment of dehydrated

alfalfa into Minnesota and such does not involve the syste-

matic and continuous supervision of National Alfalfa’s

activities. National Alfalfa is not licensed to do business

in Minnesota. It does not have a registered agent for ser-

vice of process in Minnesota. National Alfalfa has no of-

fice, mailing address, telephone listing, bank account, or

employees who reside in Minnesota. Nor does it own,

lease or possess any real or personal property in Minne-

sota. Moreover, even though it has advertised in Minne-

sota publications, such does not subject it to Minnesota

jurisdiction. Benjamin v. Western Boat Building Corpora-

tion, 472 F.2d 723 (5th Cir. 1973).

The case of Fannin vy. Chesapeake and Ohio Railway

Company, 204 F. Supp. 154 (W.D. Pa. 1962) involved a

tort which occurred in Kentucky. It was held that the

Federal District Court of Pennsylvania did not have per-

sonal jurisdiction over the defendant even though it car-

ried on a continuous and effective program of solicitation

in Pennsylvania. The fact that Fannin involves a tort as

11

opposed to a contract should be of little consequence, since

a tort generally requires less contacts than a contract,

Thompson v. Kiekhaefer, 372 F. Supp. 715 (D. Minn, 1973).

Significant in the instant action is the lack of a “ra-

tional nexus” between the forum State and the Amended

Purchase Agreement. National Alfalfa’s sales of dehy-

drated alfalfa to other Minnesota firms are at best a mini-

mal contact with that State, are totally unrelated to

APPCO’s cause of action and do not provide a basis for

the exercise of personal jurisdiction. Washington Scien-

tific Indus., Inc. v. Polan Indus., Inc., 302 F. Supp 1354,

1359 (D. Minn. 1969); accord, Bowman v. Curt G. Joa,

Inc., 361 F.2d 706 (4th Cir, 1966); cf. Aftanase v. Economy

Baler Company, 343 F.2d 187 (8th Cir. 1965).

CONCLUSION

It is respectfully submitted that Minnesota lacks in

personam jurisdiction over National Alfalfa. Since pay-

ment was to be made in Nebraska, U.C.C. Section 2-310(a)

Neb. Rev. Stats. (1971), no part of the contract was to be

performed in Minnesota. Hence, the instant action does

not come within the purview of the Minnesota corporate

long-arm statute.

Secondly, the afsertion of in personam jurisdiction

violates the Due Process Clause of the Fourteenth Amend-

ment to the Constitution of the United States. The ship-

ment of dehydrated alfalfa to Minnesota firms by National

Alfalfa is an activity which is totally unrelated to the

present action and such does not measure up to the con-

tinuous and systematic activities of the defendant in Perk-

ins v. Benguet Consolidated Mining Co., supra. The in-

DT —_—_s = _ Se

12

stant action centers around a Nebraska transaction which

involved the sale of cattle to be shipped to Petitioner's

Nebraska feedlot from points in Nebraska and South Da-

kota. To allow the State of Minnesota to assert personal

jurisdiction in this matter would not only offend the “tra-

ditional notions of fair play and substantial justice,” but

would herald the eventual demise of all restrictions on

the personal jurisdiction of state courts.

Respectfully submitted,

ALBERT THOMSON APPENDIX

Floor Three

Columbia Union Bank Building

Kansas City, Missouri 64106

Counsel for Petitioner

LINDE THOMSON FAIRCHILD

LANGWORTHY & KOHN

Of Counsel

Al

APPENDIX A

OPINION OF THE MINNESOTA SUPREME COURT

State of Minnesota

IN SUPREME COURT

No. 45263

American Pollution Prevention Company, Inc.,

Respondent,

Vs.

National Alfalfa Dehydrating and Milling Company,

Appellant.

Endorsed

Filed May 23, 1975

John McCarthy, Clerk

Minnesota Supreme Court

SYLLABUS

Application of Minn. St. 303.13, our corporate long-

arm statute, to plaintiff's action for breach of contract in-

volving the sale of feeder cattle, in part to be performed

in Minnesota, against defendant, a nonresident corpora-

tion, authorizes a court of this state to exercise personal

jurisdiction over defendant where the record reviewed

establishes sufficient minimum contacts with Minnesota

to comply with constitutional due process requirements.

Affirmed.

Heard before Sheran, C. J., and Rogosheske and Yetka,

JJ., and considered and decided by the court en banc.

A2

OPINION

ROGOSHESKE, Justice.

Defendant, National Alfalfa Dehydrating and Milling

Company, appeals from the denial of its motion to dismiss

for lack of jurisdiction. Plaintiff, American Pollution

Prevention Company, Inc., brought action in district court

alleging that defendant breached a written contract for

the purchase of feeder cattle. Defendant by its answer

denied the alleged breach, challenged the jurisdiction of

the Minnesota court, and counterclaimed, alleging breach

of contract by plaintiff in failing to meet specified de-

livery dates. Following its unsuccessful attempt to re-

move the action to Federal court, defendant brought a

motion to dismiss on the ground that Minnesota lacked

personal jurisdiction over defendant, a nonresident cor-

poration. The motion was denied and defendant appeals.

We affirm.

We review the order based solely upon the evidence

presented to the trial court, as we must. Plaintiff is a

Delaware corporation, headquartered in Minneapolis. De-

fendant is also a Delaware corporation, headquartered in

Kansas. On two occasions in 1973, discussions between

the parties were carried on in Minneapolis concerning the

possible sale of feeder cattle. Other telephone calls con-

cerning the transaction were made in 1973 and 1974. On

January 4, 1974, the parties entered into the purchase

agreement which is the subject of this dispute. The writ-

ten agreement, executed in Nebraska, contemplated the

sale by plaintiff to defendant of 3,800 cattle for a total pur-

chase price of approximately $1,600,000. The cattle were

to be shipped to defendant’s feedlot in Nebraska from loca-

tions in South Dakota and Nebraska within specified pe-

riods of time, and the exact price was to be determined by

weighing operations conducted in Nebraska.

A3

The agreemént provides that it is to be construed ac-

cording to Nebraska law. Although the agreement is

silent as to the place of payment, the uncontradicted af-

fidavit of plaintiff’s vice president includes an assertion

that payment was contemplated to be made in Minnesota.

Payments on an earlier similar contract for the sale of

cattle in August 1973 had been made by check mailed to

plaintiff in Minneapolis. By the terms of the agreement,

plaintiff is a “seller” and defendant is a “buyer.” How-

ever, the counterclaim and its incorporated exhibit show-

ing the basis therefor indicate that in previous agreements

being superseded by the contract in dispute defendant was

a seller of feed and services in fattening cattle rather

than a buyer of such cattle. The affidavit of plaintiff's

vice president, who is also an officer of I. S. Joseph Com-

pany, Inc., a Minnesota corporation, includes statements

on information and belief that defendant’s principal busi-

ness relates to the sale of feed nationwide, and that ap-

proximately 10 percent of defendant’s sales occur in Min-

nesota. The affidavit further shows that defendant in

the past has sold directly to such Minnesota companies

as International Milling, Ralston Purina, and Doughboy,

and that defendant’s representatives have frequently come

to Minnesota to discuss business with buyers and with I.

S. Joseph Company, which had for approximately 2 years

handled substantially all marketing for defendant’s ex-

ported products. The affidavit includes a copy of defen-

dant’s advertisement in a Minnesota trade publication of-

fering dehydrated alfalfa for sale. While defendant

challenges the relevance of this information, it does not

challenge its factual accuracy.

The issue presented is the propriety of the trial court’s

exercise of jurisdiction over defendant under our cor-

porate long-arm statute, Minn. St. 303.13, and constitu-

A4

tional due process requirements. Section 303.13 provides

in part:

“Subdivision 1. A foreign corporation shall be

subject to service of process, as follows:

(3) If a foreign corporation makes a contract

with a resident of Minnesota to be performed in whole

or in part by either party in Minnesota, or if such

foreign corporation commits a tort in whole or in part

in Minnesota against a resident of Minnesota, such

acts shall be deemed to be doing business in Minne-

sota by the foreign corporation and shall be deemed

equivalent to the appointment by the foreign corpora-

tion of the secretary of the state of Minnesota and his

successors to be its true and lawful attorney upon

whom may be served all lawful process in any ac-

tions or proceedings against the foreign corporation

arising from or growing out of such contract or tort.”

If, as the trial court determined and the parties on

oral argument apparently conceded, all payments were to

be made in Minnesota, then the contract was to be per-

formed in part here and, as such, fell within the reach

of the statute if there were sufficient minimum contacts

with this jurisdiction to meet due process requirements.

Decisions of this court have consistently found in § 303.13

a legislative intent to extend Minnesota’s extraterritorial

jurisdiction to the maximum limits permitted by due

process. Hunt v. Nevada State Bank, 285 Minn. 77, 172

N. W. 2d 292 (1969), certiorari denied sub nom. Burke

v. Hunt, 397 U. S. 1010, 90 S. Ct. 1239, 25 L. ed. 2d 423

(1970); Franklin Mfg. Co. v. Union Pacific R. Co., 297

Minn. 181, 210 N. W. 2d 227 (1973). If defendant’s ac-

tivities in Minnesota are extensive enough so that due

A5

process requirements are satisfied, then the statute au-

thorizes the exercise of personal jurisdiction.

Most of the cases cited by the parties are attempts to

apply to widely varying situations the principles laid

down in the well-known cases of International Shoe Co.

v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. ed. 95

(1945); McGee v. International Life Ins. Co., 355 U. S.

220, 78 S. Ct. 199, 2 L. ed. 2d 223 (1957); and Hanson v.

Denckla, 357 U. S. 235, 78 S. Ct. 1228, 2 L. ed. 2d 1283

(1958). As the parties acknowledge, the case of Aftanase

v. Economy Baler Co., 343 F. 2d 187 (8 Cir. 1965), in its

summary of the standards of those earlier cases, could

justifiably control our decision. In Aftanase, the court,

drawing together the principles enunciated in the United

States Supreme Court cases, developed five guidelines for

determining the constitutionality of the exercise of per-

sonal jurisdiction over nonresidents. This court has very

recently recognized the utility and influence of the

Aftanase guidelines in Northwestern Nat. Bank of St.

Paul v. Kratt, I eet, setulae , 226 N. W. 2d 910,

913 (1975), where we summarized them as follows:

‘* * * (1) [Q]uantity of the contacts; (2) quality

of the contacts; (3) connection between the cause of

action and the contacts; (4) interest of the state in

providing a forum for an injured resident; and (5)

convenience of the parties.”

In Aftanase, it was observed (343 F. 2d 197):

“We also think it is fair to say that * * * Supreme

Court cases establish only general and not precise

guidelines. Perhaps they purposely do no more than

this. We observe, however, that, at one time or an-

other in the opinions, three primary factors, namely,

the quantity of the contacts, the nature and quality

A6

of the contacts, and the source and connection of the

cause of s-tion with those contacts, are stressed, and

that two others, interest of the forum state and con-

venience, receive mention.”

Unlike the facts of Fourth N. W. Nat. Bank v. Hilson In-

dustries, Inc. 264 Minn. 110, 117 N. W. 2d 732 (1962),

principally relied on by defendant, in the case before us

there has been a substantial and continuing quantity of

general business contacts by defendant with Minnesota.

Defendant has solicited business in this state through a

trade paper advertisement; it has transacted business with

a number of Minnesota corporations. Defendant con-

ducts a national feed business, and it is virtually impos-

sible to do so without Minnesota contacts. The affidavit

of plaintiff’s vice president, unopposed before the trial

court, indicates a substantial and continuing business car-

ried on by defendant in this state. The nature and quality

of the contacts are also not without significance. Defen-

dant appears to be a large corporation involved in agri-

business which, by frequent dealings in Minnesota, has

taken advantage of the protection of Minnesota law and

could reasonably anticipate that its activities would have

economic as well as legal consequences in Minnesota. Fur-

thermore, there is a connection between the underlying

dispute and defendant’s Minnesota contacts. Discussions

of the transaction were conducted here, including tele-

phone calls between the corporate headquarters. Pay-

ment for the cattle could reasonably be expected to be

made in this state in the light of the prior dealings of the

parties. The contract in dispute is one transaction among

other business dealings between the parties. Finally, the

dollar amount of the contract and its potential economic

impact indicate a substantial Minnesota interest in pro-

tecting the rights of plaintiff, whose main officers are

A7

here. The factor of convenience appears to have little

significance either way. Presumably, wherever this case

is tried, someone is going to have to travel and transport

corporate records.

Applying the Aftanase guidelines, we hold that suf-

ficient contacts have been shown to sustain the exercise

of jurisdiction by a Minnesota court over defendant.

Affirmed.

APPENDIX B

(Title of Cause.)

ORDER

File No. 703261

This matter came duly on before the above Court at

Special Term thereof on Wednesday, May 29, 1974, at 9:30

a.m. before the undersigned, one of the judges of this Court,

on defendant’s motion to delay discovery and on defendant’s

motion to dismiss for want of personal jurisdiction.

George P. Hoke appeared in support of the motions and

Charles Quaintance of Maslon, Kaplan, Edelman, Borman,

Brand & McNulty appeared in opposition to them. Upon

all the files, records and proceedings herein, and upon argu-

ments of counsel, the Court being duly advised in the

premises, it is hereby

ORDERED that defendant’s motion to delay discovery

is granted from June 4, 1974, to June 12, 1974, at the same

daily times and places as previously noticed herein and in

the related federal court action bearing the same title and

being File No. Civ. 4-74-228.

A8

FURTHER ORDERED that defendant’s motion to dis-

miss for want of personal jurisdiction be and the same

hereby is denied.

Dated this 3rd day of June, 1974.

By the Court:

/s/ Edward J. Parker

District Judge

(Title of Cause.)

NOTICE OF FILING ORDER

File No. 703261

TO: NATIONAL ALFALFA DEHYDRATING AND

MILLING COMPANY and GEORGE P. HOKE and

HOKE & LARSON, Its Attorneys:

PLEASE TAKE NOTICE, that on the 4th day of June,

1974, the Court made and filed its order in the above case,

a true and correct copy of which is hereto attached.

Dated at Minneapolis, Minnesota, this 14th day of June,

1974.

Maslon, Kaplan, Edelman, Borman,

Brand & McNulty

By /s/ Charles Quaintance, Jr.

1800 Midwest Plaza

Minneapolis, Minnesota 55402

339-8015

Attorneys for Plaintiff

AQ

(Title of Cause.)

NOTICE OF APPEAL

File No. 703261

To: American Pollution Prevention Company, a Min-

nesota corporation, and to Charles Quaintance, Jr., and

Messrs. Maslon, Kaplan, Edelman, Borman, Brand & Mc-

Nulty, its attorneys.

PLEASE TAKE NOTICE that defendant, National Al-

falfa Dehydrating and Milling Company, in accordance with

Rule 103.01, and other applicable law, appeals to the Min-

nesota Supreme Court from the order of Judge Edward J.

Parker herein dated June 3, 1974, refusing to dismiss the

action for lack of personal jurisdiction of the parties.

June 26, 1974.

/s/ George P. Hoke

Attorney for Defendant

1100 Northwestern Bank Building

Minneapolis, Minnesota 55402

332/6331/2

State of Minnesota

ss.

County of Hennepin

Carol A. Fortner, being first duly sworn upon oath,

deposes and says that on the 28th day of June, 1974, she

served the above Notice of Appeal upon Charles Quain-

tance, Jr., plaintiff's attorney by enclosing copy thereof

in an envelope, postage prepaid, and depositing same in the

U. S. Mail to his proper office address.

/s/ Carol A. Fortner

Al0

Subscribed and sworn to before me this 28th day of

June, 1974.

/s/ George P. Hoke

Notary Public

Hennepin County

APPENDIX C

DISTRICT COURT

Fourth Judicial District

STATE OF MINNESOTA

County of Hennepin

AMERICAN POLLUTION PREVENTION

COMPANY, INC.,

Plaintiff,

vs.

NATIONAL ALFALFA DEHYDRATING AND

MILLING COMPANY,

Defendant.

SUMMONS

THE STATE OF MINNESOTA TO THE ABOVE-NAMED

DEFENDANT:

YOU ARE HEREBY SUMMONED and required to

serve upon plaintiff’s attorney an answer to the complaint

which is herewith served upon you, within twenty (20)

days after service of this summons upon you, exclusive of

the day of service. If you fail to do so, judgment by de-

Tc

All

fault will be taken against you for the relief demanded in

the complaint.

Maslon, Kaplan, Edelman, Borman,

Brand & McNulty

By /s/ Charles Quaintance, Jr.

1800 Midwest Plaza

Minneapolis, Minnesota 55402

339-8015

Attorneys for Plaintiff

(Title of Cause.)

COMPLAINT

1. Plaintiff is a Delaware corporation, with its prin-

cipal place of business in Minnesota.

2. Defendant is a Delaware corporation, with its

principal place of business in Kansas, but does business in

Minnesota within the meaning of the Minnesota Statutes

conferring personal jurisdiction.

3. On or about January 4, 1974, defendant entered

into an Amended Purchase Agreement in the form at-

tached hereto as Exhibit A with plaintiff.

4. Despite and in violation of the terms of that

Amended Purchase Agreement, defendant has failed and

refused to purchase any of the cattle described therein.

5. Asa result of defendant’s failure and refusal, plain-

tiff has suffered damages in excess of $608,000.00.

WHEREFORE, plaintiff demands judgment against

defendant in the amount of $608,000.00, together with in-

Al2

terest, costs and disbursements, and such other relief as

the interests of justice may require.

Maslon, Kaplan, Edelman, Borman,

Brand & McNulty

By /s/ Charles Quaintance, Jr.

1800 Midwest Plaza

Minneapolis, Minnesota 55402

339-8015

Attorneys for Plaintiff

Exhibit A

AMENDED PURCHASE AGREEMENT

THIS AGREEMENT, EXECUTED in Atkinson, Ne-

braska, this 4th day of January, 1974, by and between

AMERICAN POLLUTION PREVENTION COMPANY,

INC., (hereinafter referred to as “Seller”), and P & P

FARM SUPPLY, a division of NATIONAL ALFALFA DE-

HYDRATING AND MILLING COMPANY, (hereir.fter

referred to as “Buyer”),

WITNESSETH:

WHEREAS, the parties hereto have heretofore entered

into agreements relating to the purchase and sale of certain

cattle, and,

WHEREAS, the parties are desirous of 1estating, with

respect to the executory part of those prior agreements,

certain of the terms and conditions of such agreements, as

set forth hereinafter, and,

WHEREAS, Seller is the owne” of 2300 Okie Feeder

Steers, more or less, presently 1 cated at Onida, South

Dakota and Norfolk, Nebraska, and 1500 head of Okie

Al3

Feeder Steers, presently located at Norfolk, Nebraska,

(hereinafter sometimes collectively referred to as the

“Herd”), and is desirous of selling the Herd to Buyer,

and Buyer is desirous of purchasing the Herd from Seller

on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual

agreements and undertakings set forth hereinafter, and

notwithstanding the provisions of any earlier agreement,

and upon the terms and conditions set forth below, the

parties hereto agree as follows:

1. Seller shall sell to Buyer, 2300 Feeder Steers, more

or less, grading at least 80% choice, said steers to be de-

livered, F.0.B., to Buyer’s feedlot in Atkinson, Nebraska,

delivery to commence on or about December 31, 1973,

and to terminate on or about January 25, 1974. Buyer

shall not be obligated to accept any animals weighing less

than 650 pounds after shrink.

2. The purchase price to be paid by Buyer to Seller

with respect to the Feeder Steers described in Paragraph

1, shall be $66.00 per hundredweight, off-truck-weight

when shipped from Onida, and on-truck-weight less 3%

when shippec from Norfolk, adjusted however as follows:

a. The aforesaid $66.00 per hundredweight is based

upon average pay weight (APM 1/4/74 Ic) of 650 pounds

per animal.

b. The purchase price per hundredweight shall de-

crease by $.02 per pound of average weight per animal in

excess of 650 pounds.

c. For every average pound less than the aforesaid

650-pound average per animal, the purchase price per

hundredweight hereof shall increase $.02 per pound. (This

adjustment being referred to in the industry as a $.02 slide,

up or down).

Al4

3. The off-truck-weight referred to above shall be de-

termined upon scales, the accuracy of which have been

certified to by the State of Nebraska. Said Certification

to be currently in effect.

4. Seller shall sell to Buyer, 1500 Okie Feeder Steers,

more or less, grading at least 80% choice, said steers to

be delivered to Buyer’s feedlot in Atkinson, Nebraska,

said delivery to be completed on or about March 4, 1974.

Buyer shall not be obligated to accept any animals weigh-

ing less than 650 pounds.

5. The purchase price to be paid by Buyer to Seller

with respect to the Okie Feeder Steers described in Para-

graph 4 hereof, shall be $69.00 per hundredweight, based

on weight at the time of loading said steers at Norfolk,

Nebraska, adjusted, however, as follows:

a. The aforesaid $69.00 per hundredweight is based

upon average pay weight (APM 1/4/74 Ic) of 650 pounds

per animal.

b. The purchase price per hundredweight shall de-

crease by $.02 per pound of average weight per animal

in excess of 650 pounds.

c. For every average pound less than the aforesaid

(650-pound average weight per animal, the purchase price

per hundredweight shall increase $.02 per pound. (This

adjustment being referred to in the industry as a $.02 slide,

up or down).

d. The computed total purchase weight shall be de-

creased by 3% for shrink allowance to Buyer.

6. With respect to the portion of the Herd described

in paragraph 1 above, Seller shall invoice Buyer per

Buyer's scale weight tickets and subject to the contingency

hereinafter stated, Buyer agrees to pay said invoice on or

Al5

before January 25, 1974. With respect to that porticn of

the Herd described in Paragraph 4, Seller shall invoice

Buyer per the Fore Quarters Feed Lot, Norfolk, Nebraska,

scale weight tickets. Subject to the contingency herein-

after stated, Buyer agrees to pay said invoice upon receipt

thereof. In the event that any of the payments due the

Seller are not paid when due, the same shall draw interest

at the rate of nine per centum per annum from due date

until paid.

In the event that Buyer has been unable to sell or re-

sell any portion of either of the lots of cattle herein to a

Feeder or Investor for the purpose of feeding the same to

market weights, prior to the due dates for payment by

Buyer to Seller, the Buyer shall have the right to postpone

the payments due to Seller, in which event the Buyer shall

place said lots of cattle on feed for its own account, and

shall furnish all the feed and care at its own expense to

grow Said cattle to market weights as fat cattle and there-

after cause the same to be marketed in the joint names of

Seller and Buyer. The proceeds of the sale of such cattle

shall be first applied to the payment of any sums of money

due to Seller from Buyer under this agreement, and any

surplus thereafter shall be paid to Buyer. In the event the

proceeds of the sale of such cattle are not sufficient to

pay in full the amounts due to Seller from Buyer hereun-

der, Buyer shall immediately pay to Seller the amount of

any balance remaining «ue and unpaid.

With regard to any lots of cattle for which payment

has been postponed, Buyer shall have the right to pay for

same or any portion thereof at any time, and to receive

title to such parts as are paid for.

7. The parties hereto expressly agree that until such

time as payment of the appropriate invoice has been made

Al6

in full, by Buyer, title to the Herd or any part thereof,

which are the subject of any unpaid invoice, remains en-

tirely with Seller and Selier shall have no obligation to pre-

sent any bill of sale, brand release, or other document evi-

dencing a transfer of title to the Herd, or the appropriate

part thereof, until such payment has been received by

Seller.

8. Buyer agrees that so long as any amount of any in-

voice, including interest thereon, if any, shall remain un-

paid, Buyer shall agree to allow any field warehousing

company, of Seller’s choosing, to come upon Buyer’s feed-

lots for the purpose of inspecting the Herd and issuing ap-

propriate warehouse receipts thereon. Buyer shall use its

best efforts and shall give its fullest cooperation to such

warehousing company to assist them in the conduct of their

employment. All costs and expenses to be paid to said

field warehousing company shall be solely the obligation

of the Seller herein.

9. If payment to Seller is postponed by Buyer, Buyer

agrees that Buyer shall feed the Herd, commencing on de-

livery at its feedlot in accordance with the highest stan-

dards generally applied throughout the industry for fin-

ishing the Herd to slaughter weight, taking into considera-

tion the type and weight make-up of the Herd. This ob-

ligation shall be solely at Buyer’s expense. Buyer agrees

that no lien, whether statutory or otherwise, shall be placed

upon the Herd as a result of its obligations hereunder.

Buyer further agrees to indemnify and hold Seller harmless

against any loss, cost, or expense whatsoever, on account

of any such lien.

10. Seller and Buyer agree that delivery of the 2300

cattle as referred to in Item 1, page 1, will be in accor-

dance with the State of Nebraska Department of Agricul-

Al7

ture letter dated December 21, 1973 (copy of said at-

tached hereto). Delivery of the 1500 cattle referred to in

Item 4, page 1, will meet all conditions of the State of

Nebraska Department of Agriculture prior to shipment.

Clearance for shipment will be covered by a letter from

said agency and will not adversely affect status of the

present quarantine at P&P in Atkinson, and should P&P

not be under quarantine, such delivery would not cause

P&P to be placed back into quarantine.

11. Buyer shall be notified in advance of time of load-

ing of any cattle identified to this agreement through the

yards of facilities at Norfolk, Nebraska, and shall have

the right to have a representative present to inspect said

cattle and who shall have the right to reject any cattle not

meeting the standards of this agreement or any obviously

unhealthy cattle.

12. Buyer has previously purchased and paid for lots

of cattle from Seller, other than the cattle described in

this agreement, and has given Seller promissory notes, se-

curity agreements, and financing statements covering such

purchases. Seller agrees to immediately return to Buyer

such paid and cancelled promissory notes and security

agreements and releases of such financing statements.

Buyer may withhold payments due to Seller hereunder

until such documents are furnished.

13. Nothing in this agreement contained shall be

deemed or construed to place Buyer and Seller in the re-

lationship of partners and at all times, their relationship

shall be that of Buyer and Seller only.

14. This agreement shall be binding upon and inure

to the benefit of the parties hereto and their respective

successors and assigns.

Als

15. This agreement shall be construed according to

the laws of Nebraska.

IN WITNESS WHEREOF, the parties have hereunto

set their hands as of the day and year first above written.

American Pollution Prevention Com-

pany, Inc.

By /s/ A. P. McMaster

Its Vice President

P & P Farm Supply, a Division of Na-

tional Alfalfa Dehydrating and Mill-

ing Company

By /s/ Lowell Creach

Its Vice Pres.

STATE OF NEBRASKA

DEPARTMENT OF AGRICULTURE

December 21, 1973

Mr. Lowell Creach

P&P Feedlot

P.O. Box 86

Atkinson, Nebraska 68713

Dear Mr. Creach:

This letter is in regard to our telephone conversation

on December 21, 1973.

After consulting with Mr. Glen Kreuscher, Nebraska

Director of Agriculture and Mr. Robert Ensz, Attorney for

Nebraska Department of Agriculture, the decision was

reached with Mr. Kruescher and Mr. Ensz in agreement,

that cattle could move from Fore-Quarters Feedlot at

Norfolk to the P&P West Feedlot at Atkinson with the

Alg

following stipulations required to meet quarantine re-

quirements:

All cattle in question are to be dipped in an approved

dip under regulatory supervision. After the initial

dipping, they are to be held in strict isolation from

other cattle 10 to 14 days and receive the second

supervised dipping at the end of this time. The first

dipping is to be completed at the Fore-Quarters fa-

cilities and the second dipping may be at Fore-Quar-

ters or at P&P yards. By following this procedure,

there will be no violation of the quarantines now in

effect at either of the aforementioned premises.

Please inform this office previous to the time of

dipping so the necessary supervision can be given to charg-

ing the vat, etc.

Sincerely,

Nebraska Bureau of Animal Industry

Burrell D. Spahr, DVM

Ass’t. State Veterinarian

BDS: fs

ec: Clark Collins

Dr. R. Dougherty

Ron Krutzinger

Glenn Kruescher

STATE OF MINNESOTA

Department of State

I hereby certify that the within service of process was

filed in this office on the 15th day of April, 1974 at 1:00

o’clock P.M. and a copy thereof forwarded by registered

mail to National Alfalfa Dehydrating and Milling Com-

A20

pany, P. O. Box 500, Shawnee Mission, Kansas 66201,

pursuant to Section 303.13 Subd. 1(3) Minnesota Statutes.

By /s/ Arlen I. Erdahl

Secretary of State

APPENDIX D

(Title of Cause.)

ANSWER AND COUNTERCLAIM

File No. 703261

Comes now the defendant above named for its An-

swer and Counterclaim states as follows:

ANSWER

1) The defendant admits the allegations of paragraph

1. and 3. of plaintiff's Complaint.

2) Defendant denies the allegations of paragraphs 2.,

4. and 5. of plaintiff's Complaint.

3) As a further answer the defendant states that it

is not subject to the jurisdiction of the Courts in Minnesota

for the reason that the defendant does not do business in

Minnesota and has been served with process and under

the Minnesota “long arm” statute on a cause of action

based upon a contract to be governed by Nebraska law,

to be performed in Nebraska, executed in Nebraska, and

if there was a breach, gave rise to the cause of action in

Nebraska.

A2l

4) As a further Answer defendant alleges that the

agreement specifically provided for delivery of the first

2,300 steers by January 25, 1974, but that plaintiff

breached said agreement by failing and refusing to deliver

any of said cattle within the said time specified in the

agreement which constituted a material breach authorizing

defendant to rescind the agreement.

COUNTERCLAIM

For its Counterclaim against the plaintiff defendant

states as follows:

1) Plaintiff is indebted to the defendant in the sum

of Nine Thousand Six Hundred Ninety Dollars and Six

Cents ($9,690.06) in accordance with its contracts as set

forth in Exhibit A attached hereto.

WHEREFORE the defendant prays for judgment

against the plaintiff in the sum of Nine Thousand Six

Hundred Ninety Dollars and Six Cents ($9,690.06), to-

gether with its costs and disbursements herein.

June 11, 1974.

/s/ George P. Hoke

Attorney for National Alfalfa De-

hydrating and Milling Company

1100 Northwestern Bank Building

Minneapolis, Minnesota 55492

332-6331/2

A22

AFFIDAVIT OF SERVICE BY MAIL

STATE OF MINNESOTA

ss.

COUNTY OF HENNEPIN

Carol A. Fortner of the City of Minneapolis, County of

Hennepin in the State of Minnesota, being duly sworn,

says that on the 1lth day of June, 1974, she served the

annexed Answer and Counterclaim on Charles Quain-

tance, Jr. the attorney(s) for American Pollution Preven-

tion Company, Inc. the plaintiff in this action, by mailing

to him a copy thereof, inclosed in an envelope, postage

prepaid, and by depositing same in the post office at Min-

neapolis, Minnesota directed to said attorney(s) at 1800

Midwest Federal Plaza the last known address of said at-

torney (s).

/s/ Carol A. Fortner

Subscribed and sworn to before me, this 11th day of

June, 1974.

George P. Hoke

Notary Public

Hennepin County, Minnesota

My Commission Expires Mar. 1, 1981.

PA ttn Be nt oO A ee

A23

Exhibit A

Combined close-out on following lots:

34655, 34659, 34663, 34665, 34673,

34675 and 34683 $118,053.50

Payment on account April, 1973, re-

corded by P & P’s sales ticket +49561 (90,000.00)

Interest due on note

574346.51 x 7% x 55 days ~ (7,897.26 )

237840.60

317842.15

955582.75 x 7% x 68 days (9,446.61)

Complete payment on note: amount withheld

due to different concept on pay weight (1,046.23)

Over payment made on check #10499

paid 547716 x 47.48 = $260,082.21

should be $260,055.55 26.66

Amount due National Farm Products $9,690.06

A24

APPENDIX E

(Title of Cause.)

REPLY TO COUNTERCLAIM

File No. 703261

Plaintiff replies to defendant’s counterclaim and states:

Plaintiff is without knowledge or information sufficient

to form a belief as to the truth or falsity of the allegations

of defendant’s counterclaim.

WHEREFORE, plaintiff prays for judgment dismissing

defendant’s counterclaim with prejudice and granting

plaintiff judgment as requested in its complaint.

DATED: Ji xe 25, 1974.

Maslon, Kaplan, Edelman, Borman,

Brand & McNulty

By /s/ Charles Quaintance, Jr.

1800 Midwest Plaza

Minneapolis, Minnesota 55402

(612) 339-8015

Attorneys for Plaintiff

A25

APPENDIX F

(Title of Cause.)

MOTION

File No. 703-261

Comes now defendant, National Alfalfa Dehydrating

and Milling Company, who respectfully moves the court

to dismiss the action on the grounds that the Minnesota

court lacks jurisdiction of the parties for the reasons set

forth in the affidavit of George P. Hoke attached hereto.

Said motion will be made upon the attached affidavit,

and all files, records and proceedings herein.

Dated May 23, 1974.

/s/ George P. Hoke

Attorney for National Alfalfa De-

hydrating and Milling Company

1100 Northwestern Bank Building

Minneapolis, Minnesota 55402

332-6331/2

NOTICE OF MOTION

TO: American Pollution Prevention Company, Inc., and

Messrs. Maslon, Kaplan, Edelman, Borman, Brand

& McNulty, its attorneys.

PLEASE TAKE NOTICE that defendant, National Al-

falfa Dehydrating and Milling Company, will bring the

above motion on for hearing in the above court at Special

A26

Term thereof in the Court House on Wednesday, the 29th

day of May, at 9:30 a.m. on said day.

Dated May 23, 1974.

/s/ George P. Hoke

Attorney for National Alfalfa De-

hydrating and Milling Company

1100 Northwestern Bank Building

Minneapolis, Minnesota 55402

332-6331/2

AFFIDAVIT OF SERVICE BY MAIL

STATE OF MINNESOTA

COUNTY OF HENNEPIN

Carol A. Fortner of the City of Minneapolis, County of

Hennepin in the State of Minnesota, being duly sworn, says

that on the 23rd day of May, 1974, she served the annexed

Affidavit, Motion & Notice of Motion on Charles Quain-

tance, Jr. the attorney(s) for American Pollution Preven-

tion Company, Inc. the plaintiff in this action, by mailing

to him a copy thereof, inclosed in an envelope, postage

prepaid, and by depositing same in the post office at Min-

neapolis, Minnesota directed to said attorney(s) at 1800

Midwest Plaza Building the last known address of said

attorney (s).

/s/ Carol A. Fortner

Subscribed and sworn to before me, this 23rd day of

May, 1974.

/s/ George P. Hoke

Notary Public

Henn. County, Minnesota

My Commission Expires March 1, 1981.

A27

APPENDIX G

(Title of Cause.)

AFFIDAVIT

FILE NO. 703-261

State of Minnesota

County of Hennepin

George P. Hoke, being duly sworn, states that he is

a duly admitted and practicing attorney with offices at

1100 Northwestern Bank Building, Minneapolis, Minnesota

55402, and that he is serving as defense counsel in this

matter in the State of Minnesota.

That the so-called “AMENDED PURCHASE AGREE-

MENT” dated January 4, 1974, attached as Exhibit “A”

to plaintiff's complaint was executed in Nebraska per at-

tached Affidavit of Albert Thomson, its Secretary.

That by its terms, Article 15 thereof, it was to be gov-

erned by Nebraska law.

That upon information and belief the entire contract

was to be performed in Nebraska.

That the breach, if there was one, occurred in Ne-

braska.

/s/ George P. Hoke

Subscribed and sworn to before me this 23rd day of

May, 1974.

/s/ Carol Ann Fortner

Notary Public

Hennepin County, Minn.

My Commission Expires June 20, 1976.

A28

EXHIBIT “A”

STATE OF MISSOURI

ss.

COUNTY OF JACKSON

Albert Thomson, upon being duly sworn, states that

he is general counsel and secretary of the defendant, Na-

tional Alfalfa Dehydrating & Milling Co., and that upon

information and belief, the Amended Purchase Agreement

attached as Exhibit A to the Complaint filed by American

Pollution Prevention Company, Inc., was executed in the

State of Nebraska.

/s/ Albert Thomson

Subscribed and sworn to before me this 8th day of

May, 1974.

/s/ David L. George

Notary Public

My Commission Expires 1-17-76

ee

A ee

eR ee EE Cee ee =o eee

A29

APPENDIX H

(Title of Cause.)

AFFIDAVIT

File No. 703261

State of Minnesota

SS.

County of Hennepin

A. P. McMaster, being duly sworn, states:

1. I am vice president of American Pollution Preven-

tion Company, Inc. (APPCO). I actively participated in

the negotiations that underlie the contract described in our

complaint in the above-entitled action.

2. APPCO’s headquarters are here in Minneapolis. It

has always been a Minneapolis-based company, a fact well

known to the officials of National Alfalfa Dehydrating and

Milling Company (National Alfalfa) with whom we were

doing business. Officials of National Alfalfa came to Min-

neapolis to discuss both the transaction underlying this

litigation and other business relationships on two occasions

in 1973. In addition, numerous telephone conversations

relating to the sale of cattle by APPCO to National Alfalfa

occurred both in 1973 and in 1974; almost all of them in-

volved telephone conversations between Minnesota and

Nebraska.

A part of the same transaction that underlies this liti-

gation was the sale of cattle in August to National Al-

falfa. National Alfalfa paid APPCO by a series of checks,

each of them sent to us in Minnesota. The payments con-

A30

templated by the contract in question in this case were to

be made in Minnesota.

3. National Alfalfa has had close ties to the state of

Minnesota for at least five years. On information and be-

lief, I believe that approximately ten percent of National

Alfalfa’s sales occur in Minnesota.

4. Approximately five years ago, Sam Tuttas, who

was then president of National Alfalfa, discussed with I. S.

Joseph Company, Inc. (I. S. Joseph), a Minnesota corpo-

ration, the possibility of I. S. Joseph handling with mar-

keting for National Alfalfa. APPCO’s offices are located

within the corporate headquarters for I. S. Joseph. I am

also an officer of I. S. Joseph and in that capacity have

had numerous, repeated business contacts with officials of

National Alfalfa. For approximately two years, we did

handle all marketing on their exported products. We have

provided advice to National Alfalfa om marketing over the

years.

5. National Alfalfa has had plants in Gayville, South

Dakota and in Fargo, North Dakota. They have shipped

from those plants into Minnesota. They have sold directly

to such companies as International Milling in Minnesota,

Ralston Purina in Minnesota, Doughboy at its Minneapo-

lis office, and several other Minnesota concerns.

6. National Alfalfa and I. S. Joseph jointly, together

with another company, set up a corporation jointly to

handle export matters, pursuant to the Webb-Pomerene

Act. The purpose of that Act is to permit American cor-

porations to join together for the purpose of handling to-

gether such matters as pricing. This joint effort was ac-

tive for approximately 18 months. In connection with it,

there were meetings in Minnesota, as well as in other

states.

aan Ba oe

A31

7. Over the last five years, various officials of Na-

tional Alfalfa have come to Minnesota frequently and have

discussed substantial business transactions here in Minne-

sota, both with I. S. Joseph and other major companies

in the feed and grain business. With the exception of its

P & P Farm Division, the principal business of National

Alfalfa relates to the feed business. From my experience

in the feed business, it is virtually impossible to conduct a

national feed business without having substantial Minne-

sota contacts.

8. I am attaching to this affidavit a copy of an ad-

vertisement placed by National Alfalfa in the Minneapolis

publication, Feed Stuffs, National Alfalfa advertises in this

and other Minneapolis publications, which received wide-

spread distribution both within Minnesota and elsewhere.

/s/ A. P. McMaster

Subscribed and sworn to before me this 28th day of

May, 1974.

/s/ Edward H. Boyle

Notary Public

Hennepin County, Minn.

My Commission Expires Feb. 28, 1978.

(Notarial Seal)

A33

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