dissenting:
Matters of in personam, jurisdiction of nonresident defendants are governed by decisions of the federal courts. My brethren of the majority opinion apparently differ dramatically with me in the interpretation of the case law applicable to the issue before us.
Our differences are twofold.
Our first difference relates to what activity of Treadwell in South Carolina is relevant in determining whether in per-sonam jurisdiction of South Carolina courts over Treadwell is consonant with traditional notions of fair play and substantial justice and therefore not violative of the due process clause of U. S. Constitution. It is my belief and firm understanding of the U. S. case law that only activity relating to the subject matter of the litigation is pertinent to the question before us; on the other hand my brethren of the majority opinion would include Treadwell’s activity by partnership agency with everyone.
“When a controversy is related to or ‘arises out of a defendant’s contacts with the forum, the court has said that a ‘relationship among the defendant, the forum and the litigation’ is the essential foundation of in personam jurisdiction. ” Helicópteros Nacionales de Colombia, S. A., Petitioner v. Elizabeth Hall., et al, U. S. Supreme Court Decision No. 82-1172, U. S. Law Week, April 17,1984.
The subject matter of this litigation is an agreement by Treadwell and Lackey that upon termination and dissolution of the partnership and after application of all partnership assets, including the capital accounts of the partnership, Treadwell would, at that time, assume a ratable part of the former partnership liability for retirement benefits due Lackey. The assumption by Treadwell would, perforce of his residence, have to occur in Georgia... not in South Carolina. *86Treadwell’s activity in reference to the litigation therefore relates to Georgia, not South Carolina.
Our second difference is that the majority opinion disregards the rule that the “quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure” is, in actuality, the litmus test. International Shoe Company v. Washington, 326 U. S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945). We must be concerned, then, that Treadwell shall not be deprived of the advantage of trial in his home state unless it is completely consonant with the fair and orderly administration of the laws of our state (S. C.). In determining the fairness of requiring Treadwell to submit to the jurisdiction of our courts, we must of course, look to the apparent conduct or misconduct of the South Carolinian whom we choose to favor. Let us examine Lackey’s conduct in this litigation.
The partnership agreement provided that a partner may retire at the end of any fiscal year. Lackey retired on the very first day of the beginning of the partnership business. Not only did Lackey retire before the contract permitted retirement, the record shows that Lackey, before retirement, failed to pay into the partnership capital account his agreed1 contribution of $72,800. All this is of record and undisputed; it smells of trickéry, deception and sharp dealing. It offends this judge’s concept of fair play and substantial justice.
Additionally, as stated, Lackey agreed by the partnership contract, that upon dissolution, the partnership relation between him and Treadwell would revert to the personal relationship of a citizen of South Carolina vis-a-vis a citizen of Georgia. Lackey agreed that the joint and several liability of the partners before dissolution of the partnership would upon dissolution be replaced by Treadwell’s agreement to assume a ratable part of the retirement liability but subject to a condition precedent, i.e., application of partnership assets, including the capital account, to the retirement liability. This would of course include the $72,800 that Lackey owed the part*87nership account. Lackey’s complaint makes no mention of this responsibility of his with which he has not complied.
Our power to exert in personam jurisdiction over Tread-well, in the final analysis, depends upon our concept of fairness and convenience, not just upon some thesis that the promises and agreements between Lackey and Treadwell took place in South Carolina and not Georgia. Ratliff v. Cooper, 444 F. (2d) 745 (4th Cir. 1971).
It is my opinion that the State of South Carolina should have no interest in litigating Lackey’s case in our courts. The balance of factors to be considered strongly favor Treadwell’s motion. I, as a judge of equity, would invoke the doctrine of forum non conveniens. It offends my concept of fair play and substantial justice to deprive Treadwell of his “home turf” in litigating this case.
I would reverse.
The partnership contract provided that each partner would pay into the partnership capital account an amount proportionate to the units assigned each partner. Lackey was assigned 26 units; Treadwell 7 units. Treadwell paid into the partnership’s capital account his $19,600. Lackey failed to pay anything into the capital account for the year he retired or any year since.