Mize v. Old Taylor Fruit Co.

BISHOP, J.,

pro

tem.

Defendant appeals from an order returning this case from Los Angeles County to Fresno County for the convenience of witnesses. The action was commenced in Fresno County, but for reasons not appearing in the record was tranferred to Los Angeles County. We are of the opinion that an insufficient showing was made to warrant the order sending the case back to Fresno County. The affidavit filed in support of the motion to

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transfer the case the second time names four witnesses whose convenience would he furthered by trying the action in Fresno rather than in Los Angeles. The showing in regard to their convenience is ample. But not only must it appear that the greater convenience of certain witnesses would be served, but that it would serve some useful purpose to have them as witnesses; that is, that they are expected to bring evidence which is material. (See

Gordon v. Perkins,

(1928) 203 Cal. 183, and cases cited, page 185 [263 Pac. 231].) It is the showing in this particular which we find insufficient.

In the amended complaint it is alleged that the defendant agreed to sell for plaintiff muscat grapes at a guaranteed price of $15 a ton net to plaintiff. Roughly, two-thirds of that claimed to be due has been paid; the balance is sought. The materiality of the testimony which the inconvenienced witnesses would give is to be tested by the issue raised by defendant’s denial of the allegations just noted. The affidavit filed in support of the motion to transfer contains the following:

“That said witnesses will testify substantially as follows:

“Mr. Kirby will testify that Mr. Burns, an agent of Old Taylor Fruit Co. called on him during the negotiations for the purchase of grapes as alleged in the complaint and stated that Old Taylor Fruit Co. would pay $15.00 per ton net for muscats.

“Mrs. Roberts will testify that Burns, agent for Old Taylor Fruit Co., called her on

and