Chaffin Construction Co. v. Maleville Bros.

BRAY, J.

Defendants’ appeal from an order denying their motion for change of venue from San Mateo County to Sacramento County upon grounds of promotion of the convenience of witnesses and the ends of justice raises as the sole question whether the trial court abused its discretion.

Becoed

The complaint alleged a cause of action upon breach of contract and in the alternative upon an account stated. The contract was in writing, executed between one Chaffin and the defendant copartnership and assigned by Chaffin to plaintiff. It alleged that plaintiff’s principal place of business is in Sacramento County and defendant Edwin Maleville (one of the copartners) resides in San Mateo County. Defendants’ answer denied liability and alleged among other matters nonperformance by Chaffin and plaintiff and that Chaffin had assigned his rights in the contract and in the alleged causes of action to third persons.

Accompanying defendants’ notice of motion for change of venue was the affidavit of Elwood F. Maleville. It included a statement to the effect that to prove the stated defenses, one of which was failure to perform by Chaffin, Elwood F. Male-ville and John J. Maleville, who were parties to the contract together with Edwin B. Maleville and Chaffin, would be necessary witnesses; that the two first mentioned were residents of Sacramento County; that Edwin could not testify to said matters as he was residing in San Mateo County at all times mentioned in the complaint and did not participate directly

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in the negotiations for the contract nor have the opportunity to observe Chaffin’s performance of the contract which took place in Sacramento County; that other witnesses necessary to be called, all of whom resided in Sacramento County, were Ralph Jeffords, who would testify to Chaffin’s manner of performance and manner of keeping books, records and accounts pertinent to said contract, and to Chaffin’s commingling of joint venture funds with his own funds; Esther Peyton, who was familiar with Chaffin’s manner of doing business, his records, books and accounts, she having been in sole charge thereof; Morris Martin, Chaffin’s construction superintendent who would testify to Chaffin’s performance of the contract; Ruth Karlovich, who would testify concerning the moneys expended in the performance of the work and Chaffin’s manner and method of keeping and paying accounts and in performing the construction work required by the contract; that each of these persons was gainfully employed in Sacramento County; that they could appear and testify in that county with little inconvenience but to require them to absent themselves from their homes and families to go to San Mateo County would cause them great inconvenience and hardship, particularly as more than one appearance upon the witness stand would be required of them; that Ruth Karlovich conducts an accounting service in Sacramento County requiring her constant personal attention; that all the Malevilles are engaged in business enterprises in Sacramento County requiring their full time and attention; that Edwin, though residing in San Mateo County, makes frequent trips to Sacramento in the course of business and would not be inconvenienced if required to attend the trial in Sacramento, where the contract was made and was to be and was performed.