Cal-Ore Lumber Sales v. Russell, CAL-ORE
| Decision Date | 26 May 1955 |
| Docket Number | CAL-ORE |
| Citation | 133 Cal.App.2d 296,284 P.2d 179 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LUMBER SALES, a partnership, composed of W. E. Baker, C. B. Graves, Wallace Baker, and H. G. Graves, Plaintiffs and Respondents, v. Floyd RUSSELL, doing business under the style and name of United Box & Lumber Company; Floyd Russell, individually, Defendants and Appellants. |
James W. Harvey, San Francisco, Dorothy Handy, San Francisco, of counsel, for appellant.
John A. Spann and Jack Halpin, Jr., Redding, for respondents.
This is an appeal from an order denying appellants' motion for a change of venue.
Respondents commenced an action against appellants in Shasta County in the form of a common count, the complaint alleging 'That on August 7, 1953, and August 21, 1953, defendants became indebted to plaintiffs on an open book account for 341,615 board feet of 6/4 dry ponderosa pine, rough box, for the total agreed price of $23,640.83, sold and delivered to defendants at their special instance and request;' and 'That said obligation was incurred and to be performed in the County of Shasta, State of California.'
Appellants moved to change the place of trial to the City and County of San Francisco, basing their motion on the following grounds:
(1) That the superior court of the state of California, in and for the county of Shasta, is not a proper court for the trial of this action for the following reasons: (a) that at the time of the commencement of the action none of the defendants resided in Shasta County; (b) that none of the defendants contracted to perform the obligation sued upon in Shasta County, or entered into the alleged contract in said county, or incurred the obligation sued upon in said county; (c) that there is no special contract in writing for the performance of the alleged obligation in said county; and (d) that plaintiffs never sold or delivered any lumber at all to defendants, or any of them, in said county of Shasta.
(2) That the superior court of the state of California, in and for the City and County of San Francisco, is a proper court for the trial of this action because at the time of the commencement of the action defendant, Floyd Russell, was, and still is, a resident of said city and county.
In his affidavit in support of the motion appellant Floyd Russell alleges that he is a resident of San Francisco, does business under the name of United Box & Lumber Company and maintains an office in San Francisco, but does not have an office for the transaction of such business in the county of Shasta; that the other defendants, sued under fictitious names, are fictitious in fact as well as in name; and that none of the defendants resided in Shasta County at the time of the commencement of the action, and alleges further:
'That if any cause of action exists in this action against defendants, or any of them, the same arose in the City of Richfield, County of Tehama, State of California; that none of the lumber alleged to have been sold and delivered by plaintiffs to defendants was ever sold and delivered, or sold or delivered, to defendants, or any of them, in the County of Sahsta, and in this regard affiant further states that all sales and all deliveries of lumber, if any, were made by plaintiffs to defendants, at the City of Richfield, County of Tehama. * * *
'That none of the defendants at any time agreed to pay to plaintiffs at their offices or place of business in Shasta County, or anywhere else in said county, the sum of $23,640.83, or any sum or sums whatsoever.
'That none of the defendants ever entered into any contract with the plaintiffs in the County of Shasta, * * * for the sale, purchase, or delivery of lumber alleged in the complaint.
'That none of the defendants agreed to perform the obligations sued upon in Shasta County.'
In opposition to the motion plaintiffs filed the affidavit of its sales manager, Mr. Haynes, which states:
'That during the early part of 1953 your affiant had discussions with defendant Floyd Russell regarding sales of lumber; that sometime in late April or early May, 1953, defendant Floyd Russell together with Ted Marion, deceased, visited your affiant in the office of Cal-Ore Lumber Sales in the County of Shasta, State of California; that during this visit defendant Floyd Russell and Ted Marion, deceased, ordered dry lumber from your affiant acting as the agent of Cal-Ore Lumber Sales; that on May 25, 1953 a confirming copy of this order was received by your affiant through the mail at the office of Cal-Ore Lumber Sales in the County of Shasta. * * *
'That affiant caused to have shipped to defendants quantities of lumber from time to time in order to fill the sales mentioned above.
'That during the late April or early May visit to Redding of defendant Floyd Russell and Ted Marion, deceased, it was agreed between your affiant and defendant Floyd Russell that payment for the lumber ordered from the Cal-Ore Lumber Sales was to be made at the office of Cal-Ore Lumber Sales in the County of Shasta. * * *
'That on July 31, 1953 payment for one shipment of dry lumber sent defendants on their order was made to Cal-Ore Lumber Sales at its office in the County of Shasta. * * *
'That all negotiations, agreements, contracts, and sales on which the cause of action sued on by plaintiff is based, were made in the County of Shasta. * * *'
Subsequently, in opposition to the Haynes affidavit, appellant Russell filed another affidavit, in which he states:
'That as to any purchases from plaintiffs with which affiant had anything to do in any capacity whatsoever, the sellers were to ship the goods to, and deliver the goods at a particular place, namely, Richfield, Tehama County, California, and also the sellers were to pay the freight or other cost of transportation to said particular place, Richfield, Tehama County, California.
'That any lumber that was delivered by plaintiffs on any order with which said affiant had anything to do was shipped f. o. b. Richfield and delivered at Richfield, Tehama County, California.
'That the confirming copy of an oral order which Fred Haynes states he received as an agent of plaintiffs on May 25, 1953, was not signed by affiant, either as an individual doing business under the style and name of United Box & Lumber Company or as Floyd Russell, individually, in which capacities only your affiant has been named and served in the above-entitled action; that your affiant is the only defendant served in said action.
'That none of the lumber alleged in plaintiffs' complaint to have been sold and delivered by plaintiffs to defendants was ever sold and delivered, or sold or delivered, to defendants, or any of them, in the County of Shasta. That it was always required that all said lumber so alleged to have been sold or delivered be delivered f. o. b. at Richfield, Tehama County, California.
Respondents filed a further affidavit by Mr. Haynes which added little to the affidavit previously filed by respondents, but which stated that at the time appellant Russell and Ted Marion visited affiant at respondents' office in Shasta County
As grounds for a reversal of the order denying their motion to change the place of trial to the City and County of San Francisco, appellants contend (1) that the general rule applies which demands that an action be...
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