Sausen v. Anderton

VAN DYKE, P. J.

This is an appeal from an order denying a change of venue.

The nature of the action “must be determined from the allegations of the complaint on file at the time the motion was made and from the nature of the judgment which might be rendered thereon, assuming the truth of the allegations.”

(Bybee

v.

Fairchild,

75 Cal.App.2d 35, 37 [170 P.2d 54], citing

Neet

v.

Holmes,

19 Cal.2d 605 [122 P.2d 557], and other cases.)

The complaint alleges that defendants Anderton and MeClinton are engaged in business in San Francisco, in which business they sell vending machines; that on a given date plaintiff entered into a contract with defendants wherein they agreed to buy 200 vending machines and a “Northern California route” for a stated sum, part of which was then paid; that the balance was payable in monthly installments, of which four had been paid so that the money paid totaled the sum of $6,940; that the purchase had been induced by false and fraudulent representations concerning the subject matter of the sale; that when they discovered the fraud the plaintiffs rescinded the fraudulently-procured contract, offering to return what they had received on condition that defendants restore what plaintiffs had paid. This action, therefore, is not one founded upon a contract such as is referred to in that portion of section 395 of the Code of Civil Procedure, which sets up certain exceptions to the general rule therein declared that transitory actions must be tried in the county of the residence of one or more of the defendants. In

Postin

v.

Griggs,

66 Cal.App.2d 147, 150 [151 P.2d 887], the court said, concerning an identical type of complaint:

“. . . Such an action is not ‘founded’ on the contract sought to be canceled—it is not a contract action at all, but

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