Pacific Solvents Co. v. Superior Court

WILSON, J.

Petitioner is defendant in an action in the superior court for an accounting under two contracts with

[954]

L. B. Utter, now deceased. The action was brought by Lulu L. Utter, as administratrix of his estate. The plaintiff in that action obtained the issuance of a subpoena duces tecum directing the president of petitioner, defendant in the superior court action, to produce the records of entry in the company’s cash boobs, daybooks and other record books relating to the production and sale of products containing linseed oil or fish oil, or both, from July 1, 1945, until the date of the affidavit. Under the terms of the first contract defendant agreed to pay to Utter one cent per gallon of any product containing fish oil or linseed oil manufactured by the company or by any licensee or agent of the company after the date of the agreement which was dated May 27, 1943. Thereafter the agreement was modified in certain particulars not material to this proceeding since such modification related only to the compensation to be paid to Utter.

Petitioner made a motion in the superior court to quash and withdraw the subpoena duces tecum, which motion was denied on condition that the books generally described in the subpoena duces tecum need not be produced but that the books specifically described therein should be produced. On application of petitioner an alternative writ of mandate was issued by this court directing respondent court to quash and withdraw the subpoena duces tecum or show cause why it had not done so. No appearance has been made by the superior court. The administratrix of the Utter estate, the real, party in interest, has made return to the writ by way of demurrer on the ground that the petition for writ of mandate fails to state facts sufficient to constitute a cause of action or grounds for the issuance of the writ. The demurrer should be sustained and the writ denied.

The materiality of the books as evidence in the case is shown by affidavit of the attorney for the plaintiff in the superior court action wherein he recites that the action is for an accounting based on a breach of the contracts above mentioned and that the obtaining of priority or right to use either linseed oil or fish oil was one of the services which was made a condition precedent to the payment to decedent Utter of the sums of money sought to be recovered in the action; that a material part of the plaintiff’s ease was to determine (1) the number of gallons of linseed oil or fish oil or both the defendant company was entitled to use in each year during the life of the contract, and (2) the amount and volume of products manufactured by the company in each year during