Am. Body & Trailer Co. v. Higgins
| Decision Date | 28 November 1944 |
| Docket Number | Case Number: 31823 |
| Citation | 156 P.2d 1005,195 Okla. 349,1944 OK 320 |
| Parties | AMERICAN BODY & TRAILER CO. et al. v. HIGGINS, Dist. Judge |
| Court | Oklahoma Supreme Court |
¶0 1. VENUE - Venue of transitory action for damages for breach of contract for sale of goods against natural person is in county where some defendant resides or is summoned.
An action for damages for breach of contract of sale of goods is transitory and the venue of such action against a natural person as defendant is prescribed by Title 12, sec. 139, O. S. 1941, to effect same "must be brought in the county in which the defendant or some one of the defendants resides or may be summoned."
2. CORPORATIONS - Venue of action against domestic corporation for breach of contract for sale of goods was in county where home office was located where contract made by salesman in another county required approval by home office.
Under Title 12, sec. 134, O. S. 1941, prescribing venue of action against domestic corporation and where question of venue turns upon construction of the provision: " or in the county where the cause of action or some part thereof arose, " held, where plaintiff entered into contract for purchase of goods in Pittsburg county with salesman of defendant, a domestic corporation, and where salesman is without authority to make sale without approval at general office of corporation in Oklahoma City, and where subsequent to making such contract, said corporation by letter written at Oklahoma City gives recognition to the contract of sales as that of the corporation, that in action for breach of contract, occurring without the State of Oklahoma, the venue of such action is in Oklahoma county and not in Pittsburg county.
3. PROHIBITION - Scope of inquiry on application for writ - Merits of cause before inferior court not considered.
On application for prohibition, the only inquiries permitted are whether the inferior court is exercising a judicial power not granted by law, or is attempting to make an excessive and unauthorized application of judicial force in an cause otherwise properly cognizable by it, and, consequently, this court will not investigate the merits of the cause before the inferior court.
4. SAME - Prohibition proper remedy where upon facts absence of venue appears as matter of law.
Where district court assumes jurisdiction of an action wherein the venue as fixed by statute lies without the county where it is pending, and where timely objection to further exercise of such jurisdiction by one entitled to the privilege afforded by such statute, and where upon the facts the absence of venue appears as a matter of law, the continued exercise of jurisdiction therein is an excessive and unauthorized application of judicial force and prohibition is the proper remedy.
Original action for writ of prohibition by American Body & Trailer Company, a corporation, and Lavine Pitts, against District Court of Pittsburg County and R. W. Higgins, Judge. Writ granted.
Hal Whitten and Whitten & Whitten, all of Oklahoma City, for petitioners.
W. T Anglin, Alfred Stevenson, and O. S. Huser, all of Holdenville, for respondent.
¶1 Petitioners are the defendants in cause No. 18,946 upon the docket of district court of Pittsburg county, instituted by C. W. Burgess, doing business as Lone River Bus Company, as plaintiff, to recover damages for breach of terms of sale contract. The goods purchased by plaintiff were five bus bodies to be mounted at Richmond, Ind., upon chassis to be chosen by plaintiff and to be delivered f.o.b. at Richmond, Ind. The alleged breach relied upon for recovery was the failure of defendants as sellers to provide bodies with extra seats and paint finish in accordance with specifications of the purchase contract, which breach occurred without the state. As basis for laying venue in Pittsburg county, there is alleged in plaintiff's petition the following:
"Plaintiff is a resident of Pittsburg county, Oklahoma; that the defendant, American Body and Trailer Company, a corporation, is an Oklahoma corporation, with principal place of business in Oklahoma City, and that the defendant Lavine Pitts is a resident of Oklahoma county; that the subject matter of this suit, to wit: The contract for purchase of goods, hereinafter described, was made in Pittsburg county, Oklahoma, and that this court has jurisdiction over this cause."
¶2 Summons was served upon defendants in Oklahoma county and they, appearing specially, filed separate motions to quash upon common grounds to the effect the contract was not made in Pittsburg county, that no part of plaintiff's alleged cause of action arose in Pittsburg county, that the true venue of said action lay in Oklahoma county, the place of their residence, and that said court was without jurisdiction to proceed in said action.
¶3 Upon the issue thus made evidence was heard. The trial court, being of the opinion that the contract involved was consummated in Pittsburg county, and therefore a part of plaintiff's cause of action arose therein, held that said court had jurisdiction and overruled the motions and gave time to plead. Defendants excepted to the ruling of the court and tender as an exhibit to their petition for writ a transcript of the proceedings in said cause, including the evidence adduced on the issue made on said motions.
¶4 The essential facts are undisputed. The defendant American Body & Trailer Company is an Oklahoma corporation with its principal place of business in Oklahoma City, and had neither officers nor representatives stationed in Pittsburg county. The defendant Pitts is a resident of Oklahoma City and a salesman for said corporation. The authority of Pitts as salesman is fixed by the terms of a written contract of employment which provides "all sales are to be approved by the general office at Oklahoma City." Previous to the transaction involved the corporation had sold to one King of McAlester 20 bodies which were not yet delivered. That sale was negotiated by Pitts, handled on printed form and approved by the corporation. Through some understanding with King the details of which are not disclosed and to which plaintiff was not a party, five or more of such bodies were released by King in order that same might be sold to the plaintiff. The negotiations for the sale of such bodies were conducted orally between Pitts and the plaintiff at the offices of the plaintiff on the night of October 6, 1942, and upon the conclusion thereof Pitts agreed to write plaintiff a letter from Oklahoma City giving an analysis of the sale contract. On the following day a letter, dictated by Pitts, giving such analysis was written in Oklahoma City over signature of the corporation. During the oral negotiations nothing was said concerning the relationship between the corporation and Pitts and the plaintiff believed that Pitts was acting as a principal, and when said letter was received believed the signature thereto to be a trade name under which Pitts was acting. Pitts, while admitting that nothing was said about his relationship to the corporation, testified that he was acting as salesman on its behalf but with no authority to conclude a sale without its approval and that the letter was written after conference with the officials thereof who were thus fully advised. A. R. King, president and general manager of the corporation, testified that Pitts at time of negotiation had no authority from corporation other than expressed in the salesman's contract, and testified formal approval of a sale was not a rule of practice and that if a proposed sale was good they filled the order and if not considered good they so notified the purchaser, and that in this instance they considered the sale a good one. Payment for bus bodies was made previous to delivery of bodies by check drawn on First National Bank of McAlester.
¶5 The basic question presented is whether the venue of the action lay without Pittsburg county. If not without, the application must fail. If without, there is the further question whether prohibition is available and a proper remedy.
¶6 The action is transitory, and not being within the statutory exceptions thereto, the venue is to be determined by Title 12, sec. 139, O. S. 1941, providing that ". . . action must be brought in the county in which defendant or some one of the defendants resides or may be summoned, . . ." as qualified by section 134 of same title to the effect such action against a domestic corporation "may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose."
¶7 Under the facts, in light of the statutes quoted, the venue as to defendant Pitts is Oklahoma county unless his co-defendant, the corporation, may be sued in Pittsburg county, and whether it may be so sued depends herein on whether the cause of action or some part thereof arose in that county.
¶8 It is urged on behalf of petitioners, on authority of Consolidated Fuel Co. v. Gunn, 89 Okla. 73, 213 P. 750, that the contract of the corporate defendant did not arise until its assent thereto which was given in Oklahoma county and that such fact precluded venue in Pittsburg county as alleged. It is urged on behalf of respondent that the Gunn Case is not in point by reason of dissimilarity of facts; that the oral negotiations in Pittsburg county constituted the contract; that in conducting such negotiations Pitts was the agent of the corporation, an undisclosed principal, and cites and relies upon as controlling the case of Mounts v. Boardman Co., 79 Okla. 90, 191 P. 362, which is quoted to the effect that where agent contracts without disclosing his principal, the latter when discovered may be held. It is also urged that payment through check drawn on a McAlester bank is sufficient to lay venue in ...
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