Maselli v. EH Appleby & Co., Inc.

VAN DYKE, P. J.

This is an appeal from an order denying a motion to change the place of trial. Appellant is a California corporation. Respondent, Maselli, filed an action against appellant in the Superior Court of Glenn County. By Count One respondent sought a money judgment in the sum of $2,990.10. He alleged that he and the appellant corporation had entered into an oral agreement whereby respondent was to crush, and process into oil, olives to be delivered by appellant at respondent’s plant in Glenn County at an agreed price of $18 per ton; that this work was to be done and the price was to be paid in Glenn County; that pursuant to the contract respondent processed 172.33 tons of olives and delivered the oil therefrom to appellant; that appellant had paid only the sum of $110.04 on a total debt of $3,100.14, leaving the sum sued for unpaid. Respondent also included in his complaint a so-called second and separate cause of action, being a common count for the recovery of $2,990.10. He alleged a debt of $3,100.14, being for the reasonable value of work, labor and services done at appellant’s request “in the crushing and processing of olives”; he allowed the same credit of $110.04 and asked for the same recovery, as in the first count. Respondent also included a so-called third and separate cause of action in which he sought recovery upon a balance on a mutual, open and current book account alleged to be owing to him from appellant “for the crushing and processing of olives” at appellant’s request and at an agreed price. The same credit was allowed

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and recovery of the same balance due was asked. Appellant moved for a change of venne to the county of its residence, San Francisco. It supported this motion by an affidavit which stated its principal place of business to be in that county, and averred further that the contract upon which plaintiff had brought suit was made September 8, 1950, in San Francisco, respondent Maselli being personally present in the office of appellant when the contract was made. It was averred further that the obligation on which suit was brought and the liability, if any, of appellant

“to

pay for the crushing of certain olives” arose, and the breach of the obligation, if any, occurred, in San Francisco. Appellant countered with an affidavit which alleged the contract to have been made in the month of June, 1950, at respondent’s plant in Glenn County, appellant’s president and general manager being personally present in Glenn County at that time. The affidavit further traversed the averments of appellant’s affidavit in respect of the place where the obligation arose, where payment was to be made and where breach occurred. In addition to opposing the motion for change of place of trial upon the ground of residence respondent moved the court to retain the action upon the ground of convenience of witnesses. He averred that there were four material and necessary witnesses residing in Glenn County whereby appellant intended to prove his case. Appellant countered with a further affidavit wherein it was averred that of respondent’s four witnesses three were employees of respondent. Further it was averred that appellant must produce at least five material and necessary witnesses at the trial; that two of them resided in San Francisco, and three in Los Angeles County. No issue was raised as to the residence of appellant.