East-West Dairymen's Assn. v. Dias

SPENCE, J.

This is an appeal by defendant Dias from an order denying his motion for change of venue from Stanislaus County to Merced County.

[439]

Plaintiff, a non-profit cooperative marketing organization, brought this action seeking to enjoin defendant Dias from disposing of his dairy products to persons other than plaintiff and to recover damages for the alleged failure and refusal by said defendant to continue delivering his dairy products to plaintiff as provided in his “Member’s Contract.” The verified complaint set forth pertinent portions of the articles of incorporation and by-laws of the association together with the “Member’s Contract” signed by defendant Dias. It was alleged that the existing by-laws provided that “Each member agrees to sell and deliver to the Association’s plant in Newman, County of Stanislaus, State of California, all the milk and cream produced or controlled by such member . . . ,” and that “Each member’s obligation so to market all milk and cream produced and controlled by him shall continue in force and effect for a period of ten years,” and thereafter until the filing by the member with the secretary of notice of desire to withdraw from the association. The “Member’s Contract” was alleged to have been signed by defendant Dias in 1933 and to have read in part as follows: “The undersigned, a member of East-West Dairymen’s Association, a corporation, organized and existing under the laws of the State of California, hereby agrees to avail ourselves of the facilities of said corporation, and states that he has read and is familiar with the articles of incorporation and by-laws of said corporation, and hereby ratifies and adopts the same, and in consideration of our membership in said corporation, hereby agrees to be bound by each provision, agreement and contract therein contained, by any changes or amendments thereto, and by the rules and regulations heretofore or to be hereafter adopted by said corporation . . .” It was further alleged “that said Member’s Contract has never been terminated or ended and is now in full force and effect and said defendant Dias is now and ever since February 23, 1933 has been a member of said plaintiff corporation.”

Defendant Dias filed a demurrer and a notice of motion for change of venue to Merced County. It was stated therein that the motion would be made upon the ground that defendant was and had at all times been a resident of Merced County and that the motion would be made upon “this notice, the papers on file in this ease and the affidavit of said defendant, a copy of which affidavit is being served herewith.” Said