Taylor v. Lundblade

California Court of Appeal Mar 24, 1941 No. Civ. 6513Published

Before: Pullen

AI Brief

AI-generated · verify before citing

Holding. The court held that the county where a contract is in fact made is a proper venue for trial under Code of Civil Procedure section 395, and that a recital of place of execution in an attestation clause is not a conclusive, essential term that precludes extrinsic evidence to the contrary.

Issues

Whether a recital of the place of execution in a contract's attestation clause is a conclusive fact under the parol evidence rule.
Whether the county where a contract is in fact made constitutes a proper venue under Code of Civil Procedure section 395.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The attestation clause and particularly the recital therein that the contract was executed at Eureka was not a material part of the agreement”

“While the place of execution designated in a contract is prima facie the location where it is made, this may be rebutted by other evidence.”

PULLEN, P. J.

This appeal is from an order denying defendants’ motion for a change of venue.

The amended complaint filed in the county of Del Norte, alleges misrepresentation in the sale of a tractor, the terms

[639]

of which were embodied in a written agreement, and also alleges the agreement was made and entered into in the county of Del Norte.

The motion was made upon the grounds that the residence of the defendants was in the county of Humboldt, and that the written agreement was executed at Eureka, Humboldt County.

It is the principal defense of plaintiffs, the respondents herein, that the agreement here in controversy was in fact entered into in the county of Del Norte, and therefore, under section 395 of the Code of Civil Procedure, Del Norte is a proper county for the trial of the action. With this contention we are in accord. Section 395 of the Code of Civil Procedure as amended, provides:

“ . . . 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 . . . resides . . . shall be a proper county for the trial. . . ".

It is claimed by respondents not only by the allegations of the amended complaint but by the affidavit of James A. Taylor that the contract was in fact made in Del Norte County. It is charged in the affidavit, and not denied, “that the contract referred to in the amended complaint herein, made and entered into on or about May 16, 1939, was in fact executed in the office of Klamath California Redwood Company, at Klamath, Del Norte County, California; said contract was signed by said affiant as general manager of said Klamath company and by Fred H. Lundblade in behalf of himself and/or Fred H. Lundblade Company at the aforesaid office in Klamath; that Mr. Lundblade brought the said contract or written instrument with him from Eureka and called at the office of Klamath California Redwood Company at Klamath, Del Norte County, at which place said contract was signed; that all negotiations, discussions and arrangements pertaining to the contract were had at Klamath, California, and were not had at Eureka or within the county of Humboldt; that at the time said contract was presented to this affiant for signature, it had been previously typed and prepared for execution. ’ ’

Taylor v. Lundblade

AI Brief

PULLEN, P. J.

More from California Court of Appeal

Related research

AI Brief