Turner Hardware & Implement Co. v. Justice's Court

HART, J.

This is an original petition for a writ of prohibition, the object of which is to prevent the respondents from proceeding with the trial of a certain action pending in respondent court and wherein one Clara C. Kise is plaintiff and the petitioner herein is defendant.

[712]

It appears that on the twenty-third day of September, 1925, said Clara C. Kise and a concern named “The O. F. Mitchell Company,” engaged in business in Springfield, Ohio, entered into a written agreement whereby said company .agreed to manufacture for and deliver to said Kise an electric sign for a hotel in the city of Redding, Shasta County, and for which said Kise agreed to pay the total sum of $102, of which amount a cash payment of $25 was to be paid on the execution of the agreement and the balance of the agreed price upon the delivery of said sign; that in the making of said agreement, the O. F. Mitchell Company was represented by its agent, one J. A. Harbert, to whom Kise delivered the cash deposit or payment of $25, as required by the writing. It is further made to appear that, under date of February, 1926, the petitioner, from the city of Modesto, Stanislaus County, its place of business, addressed the following letter to said Clara C. Kise:

“Dear Madam:

“Mr. J. A. Harbert, formerly of the Mitchell Sign Company of Springfield, Ohio, has turned over to us your order for an electric sign.

“We have built this sign according to the specifications furnished us by Mr. Harbert, and today we are forwarding it to you by express, C. O. D. for $76.50.

“We trust that this sign will reach you in good order, and we know that you will be pleased with the same.

“Very truly yours,

“Turner Hdwe. & Impl. Co.,

“By S. H. Wentz,

“Credit Manager.

“SHW: AG.”

That the petitioner shipped the sign to Mrs. Kise, as indicated in said letter, through the American Railway Express Company, C. O. D.; that Mrs. Kise, upon the delivery of the sign to her by said company, paid to the latter for the petitioner and as express charges the sum of $81.75. Upon inspecting the sign Mrs. Kise found, according to her complaint in the action against the petitioner, and to prohibit the trial of which by the respondents is the purpose of the present proceeding, “that said sign was not constructed in accordance with said contract and not the kind or character of a sign ordered by plaintiff and was constructed of infe