Atwater v. Argonne Van & Storage Co.

California Court of Appeal May 6, 1946 No. Civ. 13032Published

Before: Dooling

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Holding. The court held that the denial of the motion for change of venue was proper because the contract was performable in the county of suit, and that the evidence supported the trial court's findings regarding the agent's authority and the lack of proof of defective performance.

Issues

Whether the trial court erred in denying the defendant's motion for change of venue to the county of residence.
Whether the failure to file an affidavit of denial regarding a notice of rescission constitutes an admission of the truth of the grounds for rescission.
Whether the evidence was sufficient to support the finding that the defendant's agent had authority to bind the defendant to the contract.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The denial of the motions for change of venue to the county of defendant’s residence was proper.”

“The only effect of the failure to file an affidavit of denial pursuant to section 448 Code of Civil Procedure was to admit the “genuineness and due execution” of the notice of rescission.”

“The facts above recited are ample to support the trial court’s finding against appellant’s contention that Reilly was without authority to make the contract binding upon him.”

[412]

DOOLING, J.

This is an appeal from a judgment for $81.21 with interest and costs. The action was commenced in the Justice Court of Palo Alto Township in Santa Clara County to recover the balance due for the installation of a motor in a truck owned and operated by appellant Carpenter, doing business under the name and style of Argonne Van & Storage Company. Defendant filed an answer and cross-complaint praying for damages in the aggregate sum of $1,080, and moved the justice court to transfer the action to Los Angeles County, the county of defendant’s residence. The justice denied the motion for change of venue and transferred the ease to the Superior Court of Santa Clara County pursuant to section 396 Code of Civil Procedure. Defendant renewed his motion for change of venue in the superior court and his motion was again denied.

The denial of the motions for change of venue to the county of defendant’s residence was proper. The complaint, which was verified, alleged that defendant contracted to pay the account sued on in the township of Palo Alto, county of Santa Clara. This allegation in the verified complaint was proper to be considered in opposition to the motion for change of venue

(East-West Dairymen’s Assn.

Dias,

59 Cal.App.2d 437, 441-2 [138 P.2d 772]) and the county where the obligation is to be performed is a proper county for the trial of the action. (Code Civ. Proc., § 395.)

Appellant pleaded a notice of rescission

in haec verba.

No affidavit of denial of this notice was filed and appellant argues that the effect of this was to admit that the contract had been rescinded. The only effect of the failure to file an affidavit of denial pursuant to section 448 Code of Civil Procedure was to admit the “genuineness and due execution” of the notice of rescission. There was in no sense, as appellant seems to argue, an admission that the grounds of rescission stated in the notice were true or that the notice had the effect of rescinding the contract. (21 Cal.Jur. 168.)

Atwater v. Argonne Van & Storage Co.

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DOOLING, J.

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