State ex rel. Donahue-Stratton Co. v. Grimm

• Decision Date: 10 February 1925
• Parties: STATE EX REL. DONAHUE-STRATTON CO. v. GRIMM, JUDGE.
• Court: Wisconsin Supreme Court

186 Wis. 154

202 N.W. 162

STATE EX REL. DONAHUE-STRATTON CO.

v.GRIMM, JUDGE.

Supreme Court of Wisconsin.

Feb. 10, 1925.

Mandamus by the State of Wisconsin, on the relation of the Donahue-Stratton Company, against George Grimm, Judge of the Circuit Court of Rock County. On motion to quash the writ. Motion granted.

The allegations of the petition set up that on April 16, 1924, the Rock County Sugar Company began an action in the circuit court for Rock county for damages against the relator by the service of a summons and a verified complaint; that thereafter and on April 19, 1924, the relator by its attorneys, in the manner provided by law, served a demand for change of the place of trial from Rock county to Milwaukee county, “for the reason that the defendant (Donahue-Stratton Company) was at the time of the commencement of this action and still is situated and at said time had and still has its principal office and place of business in Milwaukee county.” The Rock County Sugar Company declined to consent to such change of venue, and on May 6, 1924, the Rock County Sugar Company was by order required to show cause before the circuit court of Rock county why the venue should not be changed. The order to show cause was brought on before the circuit court upon the affidavits of the parties, and on May 23, 1924, the circuit court for Rock county entered an order denying relator's motion, to which order the relator excepts. Thereupon this proceeding was begun in this court. The petitioner prayed that an alternative writ of mandamus issue directed to George Grimm, judge of the circuit court for Rock county, requiring him to vacate the order denying the relator's motion for a change of venue or show cause to the contrary. The writ was served, and thereupon the respondent moved to quash the alternative writ of mandamus. The motion to quash was argued and the matter submitted upon briefs of counsel.

Such facts as are necessary to a determination of the case will be stated in the opinion.Olwell & Brady, of Milwaukee, for petitioner.

Jeffris, Mouat, Oestreich, Avery & Wood, of Janesville, for respondent.

ROSENBERRY, J. (after stating the facts as above).

[1] If there was more than one county which was a proper county for the trial of the action, then the demand of the relator for a change of venue is insufficient and the writ must be denied. Anderson v. Arpin Hardwood Lbr. Co., 131 Wis. 34, 110 N. W. 788. See, also, State ex rel. Bessie v. Halsey, 148 Wis. 171, 134 N. W. 362;State ex rel. Wis. Dry Milk Co. v. Circuit Court, 176 Wis. 198, 186 N. W. 732.

The action was properly triable in the county in which the relator had its principal office and place of business or in which the cause of action or some part thereof arose. Section 2619, subd. 6, Wis. Stats. It is the contention of the relator that the cause of action arose in Milwaukee county. The contract between the parties was in the form of a letter, which was as follows:

“Bay City, Mich., Oct. 2, 1923.

Bay City Dry Dock, Owned and Operated by James and James E. Davidson.

The Donahue-Stratton Co., Milwaukee, Wis.--Gentlemen: This will confirm the sale made to you of the entire output of dried beet pulp of the Rock County Sugar Company, located at Janesville, Wisconsin, manufactured by the Rock County Sugar Company during its present campaign, which will commence approximately on October 20, 1923, and which will end approximately January 1, 1924, at $33.40 per net ton of 2000 pounds.

The pulp to be put up in 100-pound sacks and to be delivered f. o. b. cars at the plant of the Rock County Sugar Company, Janesville, Wisconsin. We are to guarantee the dried beet pulp of the Rock County Sugar Company to be sound and merchantable and of our usual good quality. You agree to give us shipping directions in plenty of time for the shipment of the dried beet pulp of the Rock County Sugar Company as fast as it is manufactured.

We have written this contract in duplicate. Please sign one copy and return to us, retaining the other copy for your files.

Yours very truly,

Rock County Sugar Company,

+-------------------------------+
                ¦By¦[Signed]¦James E. Davidson, ¦
                +-------------------------------+
                

Secretary.

JED/T

Accepted: Donahue-Stratton Company.

[Signed] H. M. Stratton, Vice President.”

[2][3][4] No place of payment is specified. It was therefore to be made at the place where the seller resided, which was Janesville, Rock county, Wis. State ex rel. Gurney L. Co. v. Risjord, 161 Wis. 118, 152 N. W. 847. The Rock County Sugar Company in this case delivered the goods f. o. b. Janesville. Under the Uniform Sales Act, the purchaser had a right of inspection at Milwaukee. Section 121.47, Wis. Stats.; Knobel v. J. Bartel Co., 176 Wis. 393, 187 N. W. 188. The relator exercised this right of inspection and refused to accept the goods, being fourteen carloads of dried beet pulp. It is the contention of the Rock County Sugar Company that the goods were of a perishable nature, and under the provisions of section 121.60 (Uniform Sales Act) it took the goods and resold them for the account of the relator, and this action is brought to recover the...