Carnation Co. v. El Rey Cheese Co.

GOODELL, J.

This is an appeal from an order denying a motion for change of place of trial.

Section 395, Code of Civil Procedure, provides that “. . . 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, or any such defendant, resides . . . shall be a proper county for the trial of an action founded on such obligation, and the county in which such obligation is incurred shall be deemed to be the county in which it is to be performed unless there is a special contract in writing to the contrary . . .”

Appellant in support of his motion filed an affidavit showing that his place of residence was Los Angeles County and that the contract was entered into, to be performed, and was performed, in that county.

The verified complaint is in two counts. The first is a common count for $5,408.86 money had and received wherein it is alleged “That the obligation of defendants herein was incurred and payable

at Oakland

...”

The second count pleads the facts of the transaction. Therein it is alleged that defendants sold respondent a quantity of cheese for which respondent paid them $19,782 before dis

[858]

covering that it was unmerchantable; that after such discovery “the purchase thereof was rescinded by the parties by mutual oral agreement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; that defendants then delivered to respondent

at Oakland

cheese of the market value of $14,828.40.

The concluding allegation is that the “rescission agreement was entered into and the obligation of defendants thereunder was incurred in and to be performed by them