Wilson v. Scannavino

[370]

WARNE, J. pro tem.

*

From an order denying his motion for a change of venue defendant appeals.

Plaintiff commenced an action in the county of Butte against the defendant upon an open book account. The complaint alleges: “That within four years last past, plaintiff rendered, upon an open book account, work, labor, and services at defendant’s special instance and request; That the value of such work, labor and services performed by the plaintiff is the sum of One Thousand Seven Hundred Forty Eight and 45/100 Dollars ($1,748.45) ; . . . that the whole thereof is due and owing this plaintiff”; and “That said open book account was entered into in the Gridley Township and is payable therein.” Gridley Township is in Butte County.

Defendant moved to change the place of trial to San Joaquin County, basing his motion on the ground that at the commencement of this action he was, and still is, a resident of the county of San Joaquin.

In his affidavit in support of the motion defendant alleges: “that he was at the commencement of this action, and now is, a resident of the County of San Joaquin,” and “That the obligation sued upon was incurred, if at all, for the sub-hauling performed by the Plaintiff for this Defendant; that the Plaintiff did said sub-hauling pursuant to a telephone request from Defendant, and that pursuant to said request the Plaintiff hauled loads from Fort Klamath, California; Brown Station, Nevada; Fallon, Nevada; and Corvalis, Oregon; and that none of the hauls had as its destination any point in Butte County, California; that the open book account sued upon is based solely upon the hauls made as herein set forth. ’ ’ Plaintiff, in his affidavit in opposition to said motion, admitted the truth of the allegations contained in defendant’s affidavit but alleged in addition thereto that the contract was made by telephone and that the County of Butte is a proper county for the maintenance of the action because plaintiff there received and accepted defendant’s telephone request to do the subhauling.

Section 395 of the Code of Civil Procedure provides, in part:

“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 of an action founded on such obligation, and the county in which such