Little v. Speckert

WARNE, J. pro tem.

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This is an appeal from an order granting a motion for a change of venue to the county of Yuba, the county of the respondent’s residence, in an action filed in the county of Mendocino.

It appears from the complaint the action was one to rescind a written contract for the sale of timber (stumpage) growing upon lands owned by the appellants, which are situated in the county of Trinity.

The complaint is in two counts. The first alleges the agreement was made in the county of Mendocino and that all payments therein specified were to be made to appellants at their residence in the county of Mendocino. It further appears that because of various alleged material breaches of the contract appellants, by written notice of rescission, offered to restore everything of value theretofore received upon the cancellation and rescission of the agreement. The second count alleges that the agreement, which is pleaded by a reference, lacks mutuality of obligation because it was not signed or subscribed by the respondent. The prayer of the complaint is that the agreement be rescinded and cancelled by the court upon repayment by plaintiffs to the defendant of $1,000, etc., and “that the court decree that plaintiffs own the said real property and timber specified in the agreement, . . . free and clear of any

[727]

claim, lien, right or interest of defendant based upon the agreement,...”

Appellants having alleged notice of rescission and offer to restore everything of value received, the sole question is whether the action is now one “founded on a contract” within the purview of section 395 of the Code of Civil Procedure so as to be maintainable in the county of Mendocino, where the contract was entered into and where it was to be performed.

Section 395, subdivision (1), of the Code of Civil Procedure, in part, provides that “When a defendant has contracted to perform an obligation in a particular county, either the county where such obligation is to be performed, or in which the contract in fact was entered into, or the county in which the defendant, or any such defendant, resides at the commencement of the action, shall be a proper county for the trial of an action founded on such obligation, ...”