Carnation Co. v. El Rey Cheese Co.

GOODELL, J.

This appeal was taken by defendant E. Hagan from an order denying his motion for change of venue.

The action was brought for $5,408.86 claimed to be owing on a transaction wherein defendants were alleged to have sold respondent a quantity of cheese for which respondent paid them $19,782 before discovering that it was unmerchantable; respondent alleged that after such discovery “the purchase thereof was rescinded by the parties by mutual oral agreement entered into at Oakland,” pursuant to which the defective cheese was returned to defendants at Los Angeles, who agreed to reimburse respondent in full, including shipping costs, and that defendants then delivered to respondent at Oakland cheese of the market value of $14,828.40. The prayer for $5,408.86 is the difference between the $19,782 paid and the $14,828.40, plus freight charges of $455.26.

When appellant appeared in the action he moved for a change of venue on the ground that his residence was in Los Angeles County. His motion was denied; he appealed from the order and this court in 88 Cal.App.2d 857 [200 P.2d 19] affirmed it.

With his answer to the first amended complaint appellant filed a new notice of motion for change of venue on the grounds (1) that his residence was in Los Angeles County, and (2) that the convenience of witnesses would be promoted by a trial therein. The affirmance on the first appeal settled the matter as far as the grounds therein presented were concerned and the motion on those grounds could not be renewed. Appellant’s counsel so conceded at oral argument.

That leaves only the ground of convenience of witnesses for consideration. In support of that part of his motion appellant filed several affidavits, some by himself and three by employees of El Bey Cheese Company. In one of his affidavits

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appellant states that he is “the attorney-in-fact for El Key Cheese Company and Taylor Maid Company.”

The convenience of a witness who is a party

(Wrin

v.

Ohlandt,