Reversed and remanded.
Mr. JUSTICE LORENZ delivered the opinion of the court:
Defendant, an Ohio company doing business in Ohio, ordered and received from plaintiff, an Illinois corporation, printed advertisements to be used as inserts in an Ohio newspaper. When plaintiff filed suit in Illinois to recover payment for these newspaper inserts, defendant filed a special appearance and motion to quash service and dismiss the action alleging that the court had no jurisdiction over its person. The trial judge found that the court had no jurisdiction over the person of the defendant and quashed the service of summons. Plaintiff appealed this order raising the sole issue of whether this one transaction was sufficient to confer on the trial court in personam jurisdiction over defendant.
The pleadings show that defendant, a resident and domicilliary of the State of Ohio, is engaged in the home construction business in and about Canton, Ohio. All customers of defendant are located within Ohio and no sales are made by him outside of Ohio. On August 23, 1971 in response to plaintiff's advertisements, defendant placed a telephone call from Canton, Ohio to plaintiff, an Illinois corporation engaged in the printing business in Lincolnwood, Illinois, inquiring into the printing of advertisements for defendant to appear in a local Ohio newspaper as a supplementary section. The conversation concluded with defendant ordering 90,900 newspaper inserts at a price of $25 per thousand to be shipped f.o.b. Chicago.
Plaintiff contends that the trial court acquired jurisdiction over defendant's person under the provisions of section 17 of the Illinois Civil Practice Act, commonly referred to as the "long arm" statute (Ill. Rev. Stat. 1971, ch. 110, par. 17) which provides, in pertinent part, that a non-Illinois resident submits himself to the jurisdiction of the Illinois courts by "the transaction of any business within this State." (Ill. Rev. Stat. 1971, ch. 110, par. 17(1)(a).) The question presented is whether defendant's placement of a single interstate telephone order, his return of a corrected copy of that order and the acceptance of that order shipped f.o.b. Chicago, constituted the "transaction of any business" within the meaning of the "long arm" statute, thereby conferring jurisdiction on the trial court.
• 1 We believe our recent decision in Cook Associates, Inc. v. Colonial Broach & Machine Co., 14 Ill.App.3d 965, 304 N.E.2d 27, to be dispositive of the issue presented here. In that case plaintiff, an Illinois employment agency had sent a "flyer" regarding available job applicants to defendant, a Delaware corporation doing business in Michigan. Defendant telephoned plaintiff requesting that plaintiff divulge the name of an applicant whose partial identification had been gleaned from the "Flyer." Defendant also requested plaintiff to send a resume of that applicant and notify him to contact defendant for an interview. The conversation ended with defendant agreeing to pay plaintiff's fee if the applicant was subsequently hired. When the applicant was in fact hired and plaintiff's bill refused, plaintiff filed suit in Illinois. Defendant filed a special appearance and sought to quash the service of summons. The trial judge denied the motion and a jury trial on the merits of the action took place and money judgment was entered against the defendant. On appeal to this court, defendant again raised the jurisdictional issue. We held that defendant's single telephone call initiating this business transaction with plaintiff constituted a sufficient minimum contact with this state, so as to confer jurisdiction on the trial court. We observed that:
For these reasons we held that the maintenance of the suit in this state would not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154; Kolman v. National Racing Affiliates, Inc., 64 Ill.App.2d 61, 212 N.E.2d 313.
Defendant contends that our extension of the "long arm" statute in Cook and our decision here, under guidelines enunciated in Gray v. American Radiator & Standard Sanitary Corp. 22 Ill.2d 432, 176 N.E.2d 761, and Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673, is improper since both these Supreme Court decisions involved the "tortious act" clause rather than the "transaction of business" clause as here. (Ill. Rev. Stat. 1971, ch. 110, par. 17(1) (b).) The language of the court in Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12, is appropriate in response to that argument:
Defendant next contends that our decision here would subject customers of large mail order houses to the jurisdiction of the Illinois courts. This argument is a restatement of language found in Geneva Industries, Inc. v. Copeland Construction Corp., 312 F.Supp. 186 (N.D. Ill. 1970) and Conn v. Whitmore, 9 Utah.2d 250, 342 P.2d 871. Two responses may be made to this line of reasoning.
• 3 First, a mail order house does not fulfill its obligations by placing the ordered item in the mail or by delivering them into the hands of an interstate carrier. Performance ends only when the buyer holds the item; delivery of the items is the quid pro quo for buyer's payment and risk of loss would not pass to the buyer until the receipt of the items. (See, Section 2-509(3) of the Illinois Uniform Commercial Code, Ill. Rev. Stat. 1971, ch. 26, par. 2-509(3).) This situation must be distinguished from the instant case where plaintiff completed his performance by placing the goods in the hands of the carrier.
• 4-7 Secondly, jurisdictional due process demands that defendant have such minimum contacts with a state so that it does not offend traditional notions of fair play and substantial justice to require him to defend in that state. (International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154; Kolman v. National Racing Affiliates, Inc., 64 Ill.App.2d 61, 212 N.E.2d 313.) It must be noted that "traditional notions of fair play and substantial justice" is an elastic phrase that necessarily varies with the relationship and situation of the parties. (Fox v. Suit Links, Ltd., 4 Ill.App.3d 657, 281 N.E.2d 684; O'Hare International Bank v. Hampton, 437 F.2d 1173 (7th Cir.1971.) It may not in fact be proper to require an out of state customer of a mail order house to defend an action here. However, this is not before us. Section 17 of the Civil Practice Act reflects a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause. (Nelson v. Miller, supra.) Illinois courts have recognized under this attitude that jurisdiction is not merely dependent upon contacts with this state but upon such factors as the nature of the business transaction, the applicability of Illinois law, the contemplation of the parties and the likelihood that witnesses would be found here. (See, Gray v. American Radiator & Standard Sanitary Corp., supra; Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12; Koplin v. Thomas, Habb and Botts, 73 Ill.App.2d 242, 219 N.E.2d 646.) Here, defendant is a business company that had voluntarily entered into a business transaction with an Illinois
• 8 Defendant cites the recent decision of Davies v. Nehf (First Dist. No. 57744), 14 Ill.App.3d 318, 302 N.E.2d 382, denying the enforcement in Illinois of a default judgment entered in New York on the basis of a lack of jurisdiction under New York's "long arm" statute. While New York's "long arm" statute is identical in material respects to the Illinois "long arm" statute, it has never been interpreted identically. (Section 302 Civil Practice Law and Rules, McKinney's Consolidated Laws of New York, 172, ch. 7b, par. 302.) The New York Supreme Court in Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 208, 209 N.E.2d 68, found the Illinois Supreme Court's argument in Gray v. American Radiator & Standard Sanitary Corp., supra, "unconvincing" in regard to the scope of the "long arm" statute. We, therefore, conclude that the interpretation of New York law in Davis is not relevant to our decision here.
Finally, defendant contends that Cook is not authoritative precedent in the decision of this case. It is argued that in Cook defendant proceeded to a jury trial on the merits after a denial of his objections to jurisdiction. In such a situation, defendant asserts it was not a denial of due process. We find no merit in this argument since defendant's filing of a special appearance to contest in personam jurisdiction and then proceeding to trial after a denial of that motion never waives the issue of his amenability to process section 20 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 20).
Accordingly, the order of the circuit court of Cook County quashing the service of summons is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
DRUCKER and ENGLISH, JJ., concur.
Ill. Rev. Stat. 1971, ch. 26, par. 2-509(1)(a) provides: