Nakata v. Guarantee Mortgage Co.

STURTEVANT, J.

This is an appeal from an order refusing to change the place of trial.

The plaintiff alleges in his complaint that he is a resident of Fresno County; that the defendant is a corporation; that on the first day of October, 1920, in the county of Fresno,, plaintiff and defendant entered into a written agreement for the sale to the plaintiff of ten shares of the capital stock of the defendant corporation; that the price was to

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be $100 per share, and was to be paid by two promissory notes of even date, one in the sum of $875, and one in the sum of $1,625. That on the first day of December, 1920, plaintiff paid 'the note for $875, and he alleges that the defendant still holds the other note. It is alleged that the defendant’s agent, for the purpose of inducing the plaintiff to make the purchase, represented at and in the county of Fresno, “that within ninety (90) days from date the selling price of said shares of capital stock would be $120 each”; that the stock had “a ready sale throughout the state of California,” and that the defendant had sufficient moneys on hand “to make loans on real estate in the county of Fresno,” and that the defendant “would pay the plaintiff 12% per annum” on the stock so purchased. It is then alleged that the said representations were false and were knowingly made to deceive the plaintiff. The plaintiff then alleges “that immediately upon discovering said representations so made by said agent of said defendant corporation, said plaintiff demanded of said defendant repayment of said sum of $875, together with interest, so paid by said plaintiff as aforesaid,” etc. Thereupon the plaintiff prays judgment for the sum of $875, together with interest thereon from the first day of October, 1920.

From what we have just quoted it is patent that the plaintiff attempted to allege a cause of action as for fraud; that the tort was committed in Fresno County, and that he sued in that county for the damage which he incurred by the commission of the wrong complained of. Under this theory he was clearly within his rights. (Const., art. XII, sec. 16;

Tingley

v.

Times-Mirror Co.,