Maxwell-Chamberlin Motor Co. v. Piatt

• Decision Date: 03 June 1918
• Docket Number: 8974.
• Citation: 65 Colo. 140,173 P. 867
• Parties: MAXWELL-CHAMBERLIN MOTOR CO. v. PIATT.
• Court: Colorado Supreme Court

173 P. 867

65 Colo. 140

MAXWELL-CHAMBERLIN MOTOR CO. v. PIATT.

No. 8974.

Supreme Court of Colorado, En Banc.

June 3, 1918

Error to Mesa County Court; N.C. Miller, Judge.

Action by Howard D. Piatt, doing business as the Western Slope Auto Company, against the Maxwell-Chamberlin Motor Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

July 9 1914, the Maxwell-Chamberlin Motor Company, a corporation of Denver, Colo., plaintiff in error, entered into a written contract with Howard I. Piatt, of Grand Junction, Mesa county, Colo., defendant in error, by which the motor company agrees to sell and deliver to Piatt at Denver, Colo motorcars and trucks manufactured by the Thomas B. Jeffery Company of Kenosha, Wis., for resale within Montrose, Delta Mesa, Garfield, and Rio Blanco counties, Colo., and grants him the exclusive right to sell them within such territory to which the right is specifically confined. The contract provides Piatt shall deposit $300 as a guaranty with the motor company; that the deposit shall be refunded in cash at the expiration of the contract if at that time the dealer (Piatt) shall have taken and paid for all cars ordered by him and faithfully discharged all his obligations thereunder that the jobber (motor company) shall have the option of applying any or all of the deposit on the payment of any past-due indebtedness; that all cars and trucks purchased by Piatt shall be paid for at the factory in Wisconsin by sight draft with bill of lading attached, and all parts ordered during each month are to be paid for in cash on or before the 10th of each succeeding month; that the responsibility of the motor company for any and all loss or damage to cars, trucks, or parts sold to Piatt shall cease upon the delivery thereof by the manufacturer to the railroad, express company, or other carrier, or to Piatt's representatives at Denver, Colo., and Piatt agrees to purchase from the motor company at certain stipulated prices Jeffery motorcars for resale by him upon his own account within the restricted territory. No agency is established, and he is not in any manner authorized or empowered to act for or on account of the motor company. Either party may terminate the contract at any time by written notice stating the reasons therefor. There is nothing in the contract set out in haec verba in the complaint stating where it is to be performed by the motor company, other than as above stated.

The complaint, which contains a double statement of the cause of action, alleges that Piatt resides and is doing business in Mesa county, under the trade-name of the Western Slope Auto Company, and that the contract was to be performed there; that at the time he executed it he deposited $300 in cash with defendant, which it accepted and has ever since retained; that he took and paid for all cars ordered under the contract and duly performed all the obligations and conditions thereof on his part stipulated to be performed; that defendant violated its terms by failing to furnish a car ordered on July 7, 1915, and he thereupon rescinded the contract in writing and demanded the return of the $300 deposit, which defendant neglected, failed, and refused to do. There is another count for the same item or transaction, which is laid for money had and received, but it is the same cause of action and for the same recovery as the first count. It states that defendant received from plaintiff $300 at Grand Junction, Colo., to and for the use of plaintiff, repayment of which was demanded and refused.

Service of summons was made in Denver. In apt time defendant filed a motion for change of venue to the county court of Denver county upon the grounds that its principal office and place of business and only place of business is the city and county of Denver, and not elsewhere; that it resides in and is a resident of the city and county of Denver, which is the proper county for the trial of the case; that the contract is to be performed on its part in Denver, and not elsewhere; that it executed the contract in Denver, after its execution by plaintiff; and that the county court of Mesa county is without further jurisdiction of the case except to enter an order transferring it to the proper county for trial.

The motion was supported by the affidavit of the president of the company, upon whom summons was served, which states that he executed the contract on behalf of the company in Denver after it had been executed by plaintiff; that all things to be done by defendant...