Union Oil Co. v. Basalt Rock Co., Inc.

WARD, J.

Plaintiff filed an action against defendant in Contra Costa County to recover judgment for a balance due on the purchase price of certain stove oil. Defendant moved for a change of venue to Napa County. The motion was granted and plaintiff appealed.

It appears from the complaint, the contract attached thereto and the affidavits on file that the principal place of business of the defendant corporation is in the city of Napa, county of Napa; that the contract was prepared in duplicate, signed on behalf of defendant corporation, and delivered to plaintiff’s agent in Napa. The duplicate agreement, executed by the plaintiff corporation, was delivered personally by its agent in Napa. All orders for oil were placed by telephone from defendant’s office to plaintiff’s agent in Napa. Under the terms of the contract all deliveries of products were deemed to be complete when made by plaintiff, f. o. b. from the loading racks at Oleum in Contra Costa County. Defendant corporation receipted for the oil at Oleum and assumed the expense and risk of transportation to certain designated points. The contract also provided that “all oil delivered hereunder in any calendar month shall be paid . . . ’’ for at the seller’s office at Napa on or before the 10th day of the next calendar month. Likewise the contract provided that the “seller may, at its option, require the purchase price to be paid at the time of delivery". The complaint is silent relative to the exercise of the option to require payment of the purchase price at the time of delivery, and we therefore conclude that the seller delivered the oil under the provision of the contract requiring that payment should be made “at seller’s office at Napa”.

Article XII, section 16, of the Constitution of the state of California, provides: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other

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cases.” It is incumbent upon the moving party to show that the contract was not made; that it was not performed; that the obligation or liability did not arise, and that the breach did not occur, in Contra Costa County.