E. A. Hosmer & Co. v. Shand & Jurs Co.

• Decision Date: 22 October 1957
• Citation: 154 Cal.App.2d 636,316 P.2d 1012
• Court: California Court of Appeals Court of Appeals
• Parties: E. A. HOSMER & CO., a corporation, Plaintiff and Appellant, v. SHAND & JURS CO., a corporation, Shand & Jurs Co., a copartnership (sued herein as Doe One), Defendants, Shand & Jurs Co., a corporation, Defendant and Respondent. Civ. 9130.

Page 1012

316 P.2d 1012

154 Cal.App.2d 636

E. A. HOSMER & CO., a corporation, Plaintiff and Appellant, v. SHAND & JURS CO., a corporation, Shand & Jurs Co., a copartnership (sued herein as Doe One), Defendants Shand & Jurs Co., a corporation, Defendant and Respondent.

Civ. 9130.

District Court of Appeal, Third District, California.

Oct. 22, 1957.

Hadsell, Murman & Bishop, San Francisco, for appellant.

Thelen, Marrin, Johnson & Bridges, and Flehr & Swain, San Francisco, for respondent.

SCHOTTKY, Justice.

This is an appeal by plaintiff from an order granting a motion for change of venue from Sonoma County to Alameda County.

Plaintiff filed a verified amended complaint alleging in substance that appellant and respondent are California corporations, having their principal places of business in Sonoma and Alameda Counties, respectively; that on August 19, 1952, Shand & Jurs agreed 'to purchase all Hosmer Type 'A' Varioplex Telegraph Systems from E. A. Hosmer & Company provided price and delivery are competitive'; that thereafter for approximately two years Shand & Jurs purchased and paid for some sixty-two Varioplex systems manufactured by Hosmer for delivery to Shand & Jurs; that on January 21, 1954, Shand & Jurs notified Hosmer to complete orders on hand; that on December 15, 1954, Hosmer manufactured the last Varioplex system which was accepted by Shand & Jurs; that although Hosmer & Company was ready, willing and able to manufacture and deliver said Varioplex systems, Shand & Jurs Company refused to accept them but continued to sell complex selective systems manufactured by companies other than Hosmer & Company.

A motion for change of venue by defendant Young was denied because appellant filed a dismissal of him as a party. A motion was then noticed jointly by respondent and defendant partnership for change of venue and appellant filed a dismissal of the partnership, leaving respondent as the only party to the action.

The affidavits show that when defendant had need for telegraph systems, it prepared and mailed purchase orders from its place of business in Berkeley, Alameda County, to plaintiff's place of business in Kenwood, Sonoma County. When orders were received by plaintiff in Kenwood, it manufactured the telegraph systems so ordered at that place. After the systems were manufactured plaintiff delivered them to defendant at Berkeley, where defendant inspected and accepted the systems. Bills for systems so delivered were mailed to defendant in Berkeley by appellant. Bills were paid by defendant by check drawn on defendant's bank in Berkeley, such checks being mailed to appellant from Berkeley.

Appellant contends that performance of the contract was due and was breached at Kenwood, Sonoma County, because: (1) Appellant manufactured no telegraph systems until orders for the systems were mailed to if from Berkeley and received by it in Kenwood; (2) all systems so ordered were manufactured in its place of business in Kenwood; (3) after the systems were manufactured and delivered, payments mailed to appellant from Berkeley were received by it at Kenwood; (4) appellant was notified in January, 1954, by a letter received by it at Kenwood that it was to complete all orders on hand; (5) respondent failed to place further orders with appellant at Kenwood.

Respondent in reply contends that the proper venue is the place where performance was due from respondent of the specific contractual obligation which is alleged to have been breached and that the authorities hold that for venue purposes in contract actions the place of performance and the place of breach are one and the same. Respondent argues that it is...