Crofts & Anderson v. Johnson

BRAY, J.

Plaintiff appeals from an order granting a change of place of trial from Alameda County to Humboldt County.

[420]

Questions Presented

(1) Is there evidence to support the court’s implied finding that the account was not stated in Alameda County; and (2) in passing on a motion for change of place of trial in an action on an account stated, may the court consider the original contract out of which the account was stated?

Facts

There are two causes of action in the complaint filed in Alameda County: (1) a book account for goods, wares and merchandise; and (2) an account stated. Defendant Johnson, at the time of demurring, filed a notice of motion for change of place of trial on the ground of residence in Humboldt County, accompanied by his affidavit which, after averring the usual matters in an affidavit of merits, averred that he was a resident of Humboldt County and that he did not become indebted to plaintiff or contract to purchase the goods, wares and merchandise referred to in the complaint in Alameda County, nor was any indebtedness incurred or account stated there. Plaintiff filed the affidavit of one Gronwall, the vice-president of Edward F. Hale Co., plaintiff’s assignor, stating that its head office was at Hayward; that one of its salesmen solicited orders from defendants subject to acceptance at the home office; that the orders were accepted there by affiant, and that the obligation to pay was actually entered into at Hayward; that statements were mailed to defendants from and payable only at Hayward.

Sufficiency of the Evidence

Section 395 of the Code of Civil Procedure provides in effect that actions arising on contract may be tried in the county in which the defendant resides, or in which the contract is made or is to be performed. ‘ ‘ The general rule is that a defendant is entitled to have actions tried in the county of his residence. The right of the plaintiff to have the action tried elsewhere is the exceptional right, and must find its justification in the terms of some statute. It is the duty of a plaintiff to bring himself within some exception if he can— . . .”